Shame on You Prods., Inc. v. Banks

120 F.Supp.3d 1123

Shame on You Productions, Inc., Plaintiff,

v.Elizabeth Banks, an individual; Max Handelman, an individual; Steven Brill, an individual; Brillco, Inc., a California corporation; Focus World, a Division of Focus Features, LLC, a California corporation; Sidney Kimmel Entertainment, LLC, a California limited liability company; Filmdistrict Pictures, LLC, a Delaware limited liability company; Lakeshore Entertainment Corp., a Delaware corporation; Lakeshore Entertainment Group LLC, a California limited liability company; Broken Road Productions, Inc., a California corporation, as Doe 1; Todd Garner, an individual, as Doe 2 ; and Does 3–10, inclusive, Defendants.

CASE NO. CV 14–03512 MMM (JCx)

United States District Court, C.D. California.

Signed August 14, 2015

Theresa E. Johnson, Charles Michael Coate, Abrams Coate LLP, Los Angeles, CA, for Plaintiff.

Devin Stone, Stephen R. Mick, Barnes and Thornburg LLP, David Aronoff, Fox Rothschild LLP, Los Angeles, CA, Gregory Philip Korn, Michael J. Kump, Kinsella Weitzman Iser Kump and Aldisert LLP, Santa Monica, CA, for Defendants.

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS AND MOTION FOR JUDGMENT ON THE PLEADINGS AS TO PLAINTIFF'S FEDERAL COPYRIGHT CLAIM AND DECLINING TO EXERCISE SUPPLEMENTAL JURISDICTION OVER STATE LAW CLAIM; DENYING MOTION TO CONTINUE CASE MANAGEMENT DATES AS MOOT

MARGARET M. MORROW, UNITED STATES DISTRICT JUDGE

World, Inc., Sidney Kimmel Entertainment, LLC, Filmdistrict Pictures, LLC, Lakeshore Entertainment Corp., Lakeshore Entertainment Group LLC (collectively "defendants"), and various fictitious parties.¹ The complaint alleged claims for copyright infringement and breach of implied-in-fact contract premised on defendants' purported copying of Shame on You's motion picture screenplay.

On February 25, 2015, defendants filed a motion for judgment on the pleadings.² On April 27, 2015, after the court granted Shame on You's ex parte application for an order granting it leave to amend its complaint,³ Shame on You filed a first amended complaint alleging the same claims as the original complaint but adding Broken Road Productions, Inc. ("Broken Road") and Todd Garner as defendants.⁴ The same day, it filed opposition to defendants' motion for judgment on the pleadings.⁵ On May 11, 2015, all defendants, besides Garner and Broken Road, answered the first amended complaint.⁶

On May 27, 2015, Garner and Broken Road filed a motion to dismiss the first amended complaint, arguing there was no substantial similarity between the works as a matter of law.⁷ The same day, Garner and Broken Road filed a motion to continue the case management dates.⁸ Shame on You opposes both motions.⁹

I. FACTUAL AND PROCEDURAL BACKGROUND

Shame on You alleges that it is the owner, by way of assignment from the author, Dan Rosen, of an original motion picture screenplay titled Darci's Walk of Shame ("Darci's Walk of Shame" or "Rosen's screenplay").¹⁰ It alleges that Rosen registered an early version of the screenplay with the Writers Guild of America, East ("WGA") on or about November 17, 2006, and received registration number 145107.¹¹ Shame on You alleges that the assignment from Rosen as well as the relevant version of the screenplay have also been registered with the United States Copyright Office.¹²

1. Allegations Concerning Access

The first amended complaint alleges that on or about July 31, 2007, Rosen emailed a draft of the screenplay to an actor who was an acquaintance of Banks. Banks is a Hollywood actress and producer.¹³ The acquaintance arranged a meeting among Rosen, Banks, and Banks' husband and producing partner, Handelman, to discuss the screenplay.¹⁴ During the meeting, which purportedly lasted several hours, Rosen allegedly discussed the screenplay, detailing the plot, story, characters, sequence of events, and themes. He also purportedly gave Banks and Handelman a draft of the screenplay.¹⁵ Shame on You asserts that Banks and Handelman expressed interest in the screenplay, and indicated they would be in touch with Rosen regarding potential production of the film.¹⁶ Shame on You contends that, despite their apparent interest in the screenplay, Banks and Handelman never contacted Rosen after the meeting, but retained the copy of the screenplay Rosen had given them.¹⁷

Shame on You asserts that the screenplay was sent to various production companies and talent agencies for consideration as well; United Talent Agency, which represented both Banks and Brill, purportedly provided positive feedback.¹⁸ In 2009, Rosen met with Broken Road, to which he had sent a copy of Darci's Walk of Shame.¹⁹ Broken Road—which was founded by Garner, who remains its president—retained a copy of the screenplay but informed Shame on You that it was not interested in producing the screenplay.²⁰

2. Rosen Learns of Defendants' Motion Picture Walk of Shame

Years later, in late 2013 or early 2014, Shame on You learned of a Deadline Hollywood article, which stated that Banks was starring in a motion picture titled Walk of Shame.²¹ The article reported that Steven Brill had written the script for the film, that Focus World was the distributor, and that the film was scheduled for release on April 25, 2014.²² Shame on You asserts that the Internet Movie Database ("IMDB") webpage for Walk of Shame and the promotional movie poster displayed thereon and elsewhere confirms that Banks stars in Walk of Shame ; that Brill is the director and writer; that Sidney Kimmel Entertainment, Film District, and Lakeshore Entertainment produced the film; that Focus Features is the United States distributor; and that the film was released theatrically, digitally and on pay per view in the United States on May 2, 2014.²³

3. Allegations of Substantial Similarity

Shame on You asserts that Walk of Shame borrows heavily from Rosen's screenplay.²⁴ Specifically, it alleges that the plot, stories, characters, sequence of events, themes, and incidents portrayed in the two works are fictional and, in many respects, "virtually identical."²⁵ It contends that these substantially similar, if not strikingly similar, elements, coupled with defendants' direct access to Rosen's screenplay through Banks and Handelman, leave "little doubt that numerous substantive original elements of [Walk of Shame ] are compiled from the [Darci's Walk of Shame ] [s]creenplay."²⁶ Shame on You pleads claims for copyright infringement under 17 U.S.C. § 101 et. seq., and breach of implied-in-fact contract.²⁷

4. Summary of the Works

Although neither of the screenplays is attached to the first amended complaint, as the court explains infra, the screenplays and the Walk of Shame motion picture are incorporated by reference in the complaint and can therefore properly be considered in deciding defendants' motion for judgment on the pleadings.²⁸ The court thus will provide a brief summary of both works before analyzing the merits of defendants' motion. There are two versions of the Darci's Walk of Shame screenplay; presumably only one was provided to defendants. The court cites primarily the version that is Exhibit B to the Declaration of Devin Stone; where the versions differ in any significant respect, however, it notes the differences by citing the second screenplay, which is appended as part two of Exhibit B to Stone's declaration.

a. Darci's Walk of Shame

Darci's Walk of Shame begins in Chicago's Lincoln Park neighborhood, and focuses on lead character Darci Palter's "horribly ugly PUFFY PINK PASTRY ONE SHOULDER SOUTHERN BELLE STYLE BRIDESMAID DRESS ."²⁹ Throughout the film, the fact that the dress—which Darci must wear as maid of honor at her younger sister Deena's wedding—is horribly ugly is used as a comedic device, since Darci is forced to make the "walk of shame" wearing the dress. The story begins as Darci, a "32 [year old], mostly natural blonde and pretty" woman, gets into a cab to pick up her boyfriend Brian at his apartment in the Beldon–Stratford hotel so that they can catch a flight to her sister's wedding in Maui.³⁰ Things quickly take a turn for the worse when she walks in on Brian and their travel agent, Virginia, having sex. Darci says she is going to Maui alone, and storms out of the apartment, but not before grabbing the first class upgrade Virginia had secured for the flight.

The screenplay depicts Maui as a lover's paradise. Almost all of the couples on the flight Darci takes are on their honeymoon; the flight attendant asks Darci if she is traveling alone, which prompts Darci to engage in crude rants directed at various honeymooning couples and a four-year-old girl concerning her ex-boyfriends.³¹ Darci gets so inebriated she vomits in the lavatory. After arriving in Maui, Darci meets Nathan, a "36 [year old], rugged and shaggy dog handsome" man who drives a jeep taxicab.³² Nathan serves as the romantic lead for the remainder of the screenplay. After a long conversation during the ride to the hotel, Nathan delivers Darci to the upscale Four Seasons Hotel where Darci's family—her mother, father, sister, and 101–year–old aunt Bertha—as well as the groom and his family are introduced.³³ The next several scenes include a trip to the beach, and a Hawaiian luau rehearsal dinner where Darci is forced to wear the ugly pink dress and is introduced (or reintroduced) to the man (or boy) with whom she goes home before embarking on her walk of shame the following morning. The boy, Justin, is 25, "tall, well built, and manly" with an amazing smile.³⁴ In one version of the screenplay, Darci's mother introduces Justin—the son of a family friend—to Darci. Justin makes it clear that he already knows Darci; Darci does not understand how this could be. It is later revealed that she used to babysit Justin as a child. In the second version of the screenplay, Justin is a bus boy at the hotel; Darci runs into him while on her way to the rehearsal dinner, and embarrasses herself by trying to mop up water that she causes him to spill on himself.³⁵

The story...