Shame on You Productions, Inc. v. Elizabeth Banks
120 F. Supp. 3d 1123
C.D. Cal.2015Background
- Plaintiff Shame on You (assignee of Dan Rosen) sued defendants alleging copyright infringement and breach of implied‑in‑fact contract, claiming the 2014 film Walk of Shame copied Rosen’s screenplay Darci’s Walk of Shame. Plaintiff alleged defendants (through actress Elizabeth Banks, her producing partner Handelman, Broken Road Productions, and its founder Todd Garner) had direct access to the screenplay.
- Defendants moved for judgment on the pleadings challenging substantial similarity; Garner and Broken Road moved to dismiss for failure to state a claim. The parties disputed whether the motions should be treated as pleadings‑stage motions or converted to summary judgment. Plaintiff submitted expert reports; defendants submitted the two screenplays and the film (all incorporated by reference into the FAC).
- The court treated the Rule 12(c) motion as directed to the operative FAC, excluded plaintiff’s expert reports as extrinsic evidence at the pleadings stage, and considered only the FAC plus the screenplays/film (incorporated by reference).
- The court found the FAC adequately pled direct access as to Banks, Handelman, and Broken Road (and plausibly as to Garner via Broken Road), allowing the inverse‑ratio rule to reduce the quantum of similarity required.
- Applying the Ninth Circuit two‑step substantial‑similarity analysis (extrinsic then intrinsic), the court concluded there were only isolated, unprotectable similarities (a tow‑lot exchange and a helicopter transport), and that the overall plot, themes, characters, dialogue, mood, setting, pace, and sequence of events were materially different.
- Rulings: the copyright claim was dismissed with prejudice as to all defendants (judgment on the pleadings for remaining defendants; dismissal with prejudice of Garner and Broken Road). The state implied‑in‑fact contract claim was dismissed without prejudice for lack of supplemental jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendants’ Rule 12(c) motion was moot after plaintiff filed the FAC | Amended complaint moots prior motion | Motion can be construed as directed to FAC because claims/facts unchanged | Court construed motion as directed to FAC and considered it on the merits |
| Whether plaintiff pled direct access by Banks, Handelman, Broken Road, Garner | Rosen gave Banks/Handelman a draft at a multi‑hour meeting in 2007; Broken Road received a copy in 2009; Garner is founder/president of Broken Road and allegedly received benefit | Defendants contested access/its sufficiency | Court found FAC sufficiently pleaded direct access (and plausible as to Garner via Broken Road) |
| Whether the works are substantially similar in protected expression | Plaintiff pointed to numerous asserted similarities in plot, characters, dialogue, settings, helicopter/tow‑lot scenes and argued inverse‑ratio rule lowers similarity threshold | Defendants argued similarities are generic, scènes‑à‑faire, or superficial; overall narratives materially differ (LA urban career anchor vs. Maui romantic comedy) | Applying extrinsic test, court found only isolated, unprotectable similarities and no substantial similarity as a matter of law; copyright claim dismissed with prejudice |
| Whether extrinsic evidence (expert reports and attachments) required conversion to summary judgment | Plaintiff argued expert evidence is necessary to assess extrinsic test | Defendants relied on screenplays/film incorporated by reference; expert reports are extrinsic and not properly considered at pleadings stage | Court excluded expert reports and refused to convert to summary judgment because the screenplays/film were incorporated by reference and sufficient for the extrinsic comparison |
| Whether to retain supplemental jurisdiction over the state implied‑in‑fact contract claim | Plaintiff favored keeping the state claim in federal court | Defendants argued federal claim would be dismissed and state contract claim should proceed in state court | Court declined supplemental jurisdiction and dismissed the implied‑in‑fact contract claim without prejudice |
Key Cases Cited
- Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991) (elements of copyright infringement: ownership and copying of original constituent elements)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (pleading standards require plausible factual allegations)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (plausibility pleading standard and disregard of legal conclusions)
- Cavalier v. Random House, Inc., 297 F.3d 815 (9th Cir. 2002) (extrinsic/intrinsic test description; filter unprotectable elements)
- Three Boys Music Corp. v. Bolton, 212 F.3d 477 (9th Cir. 2000) (inverse‑ratio rule: higher access lowers required similarity)
- Funky Films, Inc. v. Time Warner Entertainment Co., 462 F.3d 1072 (9th Cir. 2006) (discussing scènes‑à‑faire and rejecting substantial similarity despite genre overlaps)
- Benay v. Warner Bros. Entertainment, Inc., 607 F.3d 620 (9th Cir. 2010) (distinguishing protectable elements from shared unprotectable premise; similar titles/premises not dispositive)
- Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542 (9th Cir. 1990) (standard for judgment on the pleadings)
- Metcalf v. Bochco, 294 F.3d 1069 (9th Cir. 2002) (permitting survival of claim where numerous generic similarities formed a distinctive pattern; distinguished by the court here)