Plaintiff Shame on You Productions, Inc., was assigned a screenplay titled “Darci’s Walk of Shame” by its author, Dan Rosen. Shame on You sued defendants, including actress Elizabeth Banks, for copyright infringement and breach of implied-in-fact contract in a California district court. Shame on You asserted that the defendants had access to the screenplay and that the plot, stories, characters and themes portrayed in “Darci’s Walk of Shame” were virtually identical to those in the 2014 comedy “Walk of Shame” starring Banks. The district court granted defendants’ motion to dismiss the copyright infringement claim.
The district court found that Shame on You sufficiently pleaded defendants’ access by showing that Rosen emailed a copy of a draft of the screenplay to an acquaintance of Banks and then met with Banks and her husband and producing partner to discuss the screenplay. Shame on You alleged the discussion included the plot, characters, sequence of events and themes, and that Rosen also gave a draft of the screenplay to Banks and her husband, who sent a copy to defendant Broken Road Production Inc. Because the complaint plausibly alleged defendants’ direct access to plaintiff’s script, under the inverse ratio rule, the degree of similarity that plaintiff need establish to survive a motion to dismiss is lowered.
Nevertheless, the district court found that, applying the extrinsic tests set forth by the Ninth Circuit, “Walk of Shame” was not substantially similar to plaintiff’s screenplay as a matter of law. The extrinsic test focuses on articulable similarities between the two works. Scenes a faire—situations that flow necessarily or naturally from a basic plot premise—cannot sustain a finding of infringement and must be disregarded by the court. The intrinsic test is a subjective comparison that focuses on whether an ordinary, reasonable audience would find the works substantially similar in total concept and feel, and is reserved for the trier of fact. Accordingly, if the plaintiff satisfies the extrinsic test, the intrinsic test must be left to the jury and any dispositive motion must be denied.
The district court agreed with the defendants that no substantial similarity existed in protected expression under the extrinsic test. Specifically, the district court found that a “walk of shame” is not itself protectable because many of the purported similarities Shame on You identified flow directly from the basic premise of a walk of shame and are non-protectable scenes a faire. Those similarities included spending the night with someone you just met, waking up disoriented the next morning at the individual’s home and putting on the clothes worn the night before. The district court concluded that although the two works share the same premise and several elements that flow naturally from that premise, the narratives were strikingly different. For example, both main characters had recently separated from ex-boyfriends and each then meets a man who helps her make it to her final destination by helicopter, but the breakups occurred very differently and the help provided by a new man differed significantly.
With respect to the works’ characters, the district court found that while both main characters are attractive blonde “good girls,” this character concept is not copyrightable. Moreover, the main character of “Walk of Shame” is a career woman who is not a heavy drinker, while the main character of “Darci’s Walk of Shame” is a heavy drinker who appears crass and inappropriate. In addition, the district court found that a number of the other characters, including taxi drivers, ex-boyfriends and loudmouthed best friends, were generic and unprotectable.
The district court also concluded that the dialogue, settings and pace of the two works were not substantially similar. Any overlap in dialogue was isolated and involves common words or phrases. Similarities in the settings were generic and constituted scenes a faire except for the tow lot scenes and helicopter rides. The court also noted that the film took place over 24 hours, while the unproduced screenplay unfolded over three days.
The district court dismissed plaintiff’s copyright infringement claims with prejudice. The court declined to exercise supplemental jurisdiction over plaintiff’s state law implied-in-fact contract claim, and dismissed that claim without prejudice to its refiling in state court.