Manno v. Campbell

Background

Kelly Manno alleged that an episode of the television program “That Damn Michael Che” infringed copyrights in two one-minute videos she created and posted on TikTok, Facebook, and Instagram. Both videos, titled “HomeGirl Hotline,” portrayed a fictional service through which a caller could order a “homegirl” to respond violently to a problem. The defendants were associated with creating, producing, and broadcasting the episode, which included four sketches involving a fictional “homegrrl” mobile app.

Manno asserted direct, contributory, and vicarious copyright infringement. The defendants moved to dismiss under Rule 12(b)(6), which tests whether a complaint states a legally sufficient claim. The opinion also notes that Manno had dismissed an earlier action without prejudice.

Court’s Analysis

A copyright-infringement claim requires ownership of a valid copyright and copying of original, protected elements. To show copying, a plaintiff must establish actual copying and substantial similarity between the protected elements of the works. The court may decide substantial similarity at the motion-to-dismiss stage by comparing the works themselves, without discovery or expert testimony when those materials are sufficient for the comparison.

The court held that Manno plausibly alleged access because her videos had been widely distributed on multiple platforms and she alleged that she had more than one million TikTok followers as of September 12, 2021. The court therefore rejected the defendants’ argument that Manno had not adequately alleged access.

The court nevertheless held that Manno failed to allege similarity involving any protected element of her videos. The general idea of hiring a “homegirl” to fight someone’s battles was not protected by copyright. The order-and-arrival structure—requesting a service and then having the service arrive—was also a standard feature flowing naturally from the general idea of hiring a service. Under the “scènes-à-faire” doctrine, standard or indispensable elements of a particular type of work are not protected.

The court also rejected Manno’s arguments that the works shared protected comedic expression, a theme of violence and vengeance, or similar characters. Those were general ideas or generic characteristics. The court observed that the characters were dressed differently, that the apparent shared characteristics were that they were women and wore sneakers, and that the episode used several different “homegirl” characters played by different actors.

Disposition

The court concluded that Manno had not pleaded infringement of protected expression. Manno did not dispute that her contributory and vicarious infringement claims would fail if she could not establish direct infringement. Judge Denise Cote granted the defendants’ March 25, 2022 motion to dismiss, directed the Clerk of Court to enter judgment for the defendants, and ordered the case closed. The opinion does not state that the dismissal was with or without prejudice.