Elizabeth Banks showed a lot of spirit in her starring role in the 2014 comedy movie Walk of Shame, but the movie did not perform well at the box office (although it has since been a constant presence on HBO).
Despite the limited financial success of Walk of Shame, Banks and the production companies behind Walk of Shame were sued for copyright infringement. The allegation was that Walk of Shame infringed the copyright from a movie script “Darci’s Walk of Shame,” that Banks and the production companies appear to have had access to in the past.
A federal court recently entered judgment in favor of Banks and the production companies on the grounds there was no copyright infringement.
To prove copyright infringement, it must be shown there is (1) ownership of a valid copyright and (2) copying of constituent elements of the work that are original. Copying can be proven by showing the infringer had access to the copyrighted work and that the works at issue are substantially similar in their protected elements. In the 9th Federal Circuit (which includes California), a lower standard of proof of substantial similarity is required when a high degree of access to the copyrighted work is shown.
In determining whether 2 works are substantially similar in the 9th Circuit, there is a two-part analysis, an extrinsic test and an intrinsic test. The extrinsic test is an objective comparison of specific elements, i.e. plot, themes, dialogue, mood, setting, pace, characters, and sequence of events. Familiar stock scenes and themes are not protected. Situations that flow naturally from a basic plot premise are not protected. The intrinsic test test is a subjective comparison that focuses on whether an ordinary, reasonable audience would find the two works substantially similar in the total concept and feel of the works.
The court found there was reason to believe Banks and the production companies had access to the copyrighted Darci’s script, but there was no substantial similarity between the two works, even under the lower standard of proof of substantial similarity where access is shown.
The Walk of Shame lawsuit contended there were substantial similarities between the two works in that both works feature a female lead character living in a big city, who breaks up with her boyfriend, gets drunk, spends a one-nighter with a man she just met, wakes up disoriented, embarks on a walk of shame while wearing a bright dress to get to an important event, and finds romance with a man who helped her with her troubles. However, the court first stated there was nothing original about a “walk of shame.” In addition, there are certain elements that would flow directly from a story about a walk of shame: i.e. losing one’s wallet or phone so that there was not an immediate ability to return home; getting drunk; waking up disoriented in a strange place. Also, there were substantial differences in the theme of the stories (Walk of Shame was focused on the lead character’s personal growth whereas Darci’s was focused on finding the right relationship), the setting (Walk of Shame was set in Downtown Los Angeles while Darci’s was largely based in Maui), the lead character’s dress, the mood and supporting characters.
The Walk of Shame case is a good example of the difficulties in proving two works are substantially similar, even where access is shown and on the surface it appears there are a number of similarities between the two works.
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