The Volokh Conspiracy
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From Manno v. Campbell, decided Wednesday by Judge Denise Cote (S.D.N.Y.):
As of September 12, 2021, [Kelly] Manno has more than 1 million followers on TikTok. Manno created and owns all rights to the two one-minute-long Videos posted on TikTok, Facebook, and Instagram entitled "HomeGirl Hotline." The first Video was posted on August 9, 2020, and the second on September 4, 2020. Both Videos revolve around a fictional service hotline through which callers can order a "homegirl."
In both Videos, a woman calls the HomeGirl Hotline to speak to a dispatcher. The caller explains the nature of her problem, the dispatcher asks clarifying questions, and the dispatcher sends a Homegirl. In the first Video, the dispatched HomeGirl throws a cheating husband's belongings out of the house and slashes his car's tires. In the second Video, the HomeGirl beats the mother of a child bully. Advertisements for "Homegirl Hoodies" available for purchase at Manno's website are interspersed throughout the Videos.
The defendants are the creators, producers, and broadcasters of a television program airing on HBO Max entitled "That Damn Michael Che." On April 26, 2021, the defendants released a 23-minute Episode of the program entitled "Only Built 4 Leather Suits." Four of Episode's ten sketches are built around the use of a fictional mobile app called "homegrrl" to order a homegirl.
The Episode begins with Che entering a confessional in a Catholic Church. While the Episode cuts to other scenes, the Episode returns to the confessional scene as Che complains that a female bouncer at a nightclub embarrassed him when she denied him entry in front of his friends. Che explains that he would never hit a woman because he doesn't want to get "cancelled" but asks the priest "do you ever want to sock a lady because she made you feel small in front of your friends?" The Episode then cuts to a scene in a supermarket, launching the first of the four "homegrrl" segments.
In the first homegrrl segment, a female customer in a supermarket gets into a disagreement with a male checkout clerk. The customer punches the clerk in the face. A narrator then asks, "has this ever happened to you? Crazy lady rocks your sh*t in public, and you can't do anything about it?" The clerk says to the camera, "there's got to be a better way." The offscreen narrator returns and says "now there is, with the all new HomeGrrl app. The HomeGrrl app lets you order a homegirl to fight for you when your hands are tied." At this point, a homegirl arrives and the clerk gestures to the customer and asks the homegirl to hit her. The homegirl beats up the customer and the clerk says "thanks, homegirl!" The homegirl turns to the camera to say "please rate me five stars."
The second homegirl segment begins after a car accident. A woman gets out of a car and confronts the male driver of the car behind her. The male driver repeatedly asks the woman to calm down but she yells angrily. Throughout the argument, the man is seen typing on his phone. Shortly thereafter, a homegirl arrives and asks "who ordered the HomeGrrl Black?" The male driver identifies himself and the homegirl offers him some gum or water before the homegirl estimates the time it should take to finish beating the woman driver. The male driver turns to the camera to say "thank you, Homegrrl." In an interlude, Che appears on camera and explains that everyone needs a homegirl to call when being bullied by a girl.
In the third homegirl segment, a woman is shown accusing a man's young son of stealing her cellphone. The man attempts to protest but the woman screams and jumps towards the boy. A homegirl appears and stops the man from intervening, screaming "no, no, no, no, no! No, no, no, I got this" before beating up the woman. The man responds "thanks, Homegrrl."
In the fourth and final homegirl segment, three male characters are talking in a nightclub. One of the male characters recognizes a woman he knows from an earlier sketch.
He believes the woman is sharing an embarrassing picture of him with her friends. Without any dialogue, he takes out his cellphone to order a homegirl through the app and walks away.
Manno sued, claiming copyright infringement, but the court held that, if Che took anything, he just took ideas, which are unprotected by copyright ("free as the air to common use," as we say in the intellectual property biz):
"[I]deas are not protected by copyright." … The "scènes-à-faire" doctrine "separate[s] protectable expression from elements of the public domain." Under the scènes-à-faire doctrine, "elements of a work that are indispensable, or at least standard, in the treatment of a given topic—like cowboys, bank robbers, and shootouts in stories of the American West—get no protection." "[T]he common use of such stock merely reminds us that in Hollywood, as in the life of men generally, there is only rarely anything new under the sun." …
Manno's claim of copyright infringement must be dismissed for its failure to plead infringement of any protectible element of either Video. Even the underlying premise regarding the need for a homegirl is different. In the Videos a woman calls for a homegirl; in the Episode, a man calls a homegirl to fight his battles since he cannot be seen striking a woman. To the extent that any similarities exist between the Episode and the Videos, these elements are not protectible.
The idea of hiring a homegirl to fight battles, as Manno herself admits, is not protectible. Similarly, depicting a concept in an order-and-arrival structure is not protectible. In fact, this order-and-arrival structure flows naturally from the general premise of hiring a service to address a problem. The service a customer orders necessarily arrives after one requests it. Any similarity in the structure of the sketches in the Episode and the Videos is simply traced to a reliance on a scene a faire.
Manno argues that the protectible element in her Videos is the unique creative comedic depiction of a service through which a customer in need specifically summons a home girl to fight one's battles, and the videos structure that expression around a depiction of the act of calling for the homegirl, and the homegirl arriving and proceeding to inflict violence or damage as a surrogate upon the target.
Manno also alleges that the works are similar because they depict variations on the same theme of violence and vengeance. These are general unprotectable ideas and "ideas are not protected by copyright."
Manno next argues that there are similarities between the homegirl characters in the Episode and the Videos. Manno does not explain how their characters are similar and simply includes a side-by-side picture of one of the characters in her Videos and one of the several homegirl characters in the Episode. It is hard to observe any similarity here. The two characters are dressed differently; the only apparent similarity is that the characters are both women and both wear sneakers. Such generic and common characteristics cannot serve as the basis for an infringement claim. Further, in the Episode, several different homegirl characters are shown and each is played by a different actor. This only serves to underscore the lack of similarity between the characters in the Episode and the Videos.
Finally, Manno requests that the Court bypass the question of substantial similarity until the parties have engaged in discovery or obtained expert testimony. It is entirely appropriate to address the substantial similarity issue now.
The Videos and Episode were submitted to the Court by the defendants in support of their motion. The relevant inquiry for a copyright infringement claim is an ordinary observer's comparison of the works. Manno does not explain why an expert witness or any discovery is necessary to evaluate the similarities between the works….
Thanks to the Media Law Resource Center (MLRC) MediaLawDaily for the pointer.