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"Walk of Shame" Reveals the Shameful Side of Hollywood

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On April 6, 2017, the 9th Circuit heard oral arguments in the appeal of Shame On You Productions, Inc. v. Elizabeth Banks, et. al for which an amicus brief in support of screenwriter/producer Dan Rosen (Shame On You Productions) was submitted to the 9th Circuit by Pierce Law Group LLP on behalf of the California Society of Entertainment Lawyers (CSEL).

Back in 2014, Elizabeth Banks and others behind the motion picture "Walk of Shame" were sued for copyright infringement and breach of implied-in-fact contract by screenwriter Dan Rosen who had pitched Banks a similar script back in 2007 and wherein some substantial development concerning the project had taken place between Banks and Rosen. Ultimately, Banks decided not to move forward with Rosen, but did produce and star in a film with a very similar script.

Rosen sued.  The case was tossed out in 2015 by the District Court, which wrote that the similarities between the works mostly flowed directly from unprotectable scenes a faire obligatory to any film the basic premise of a "walk of shame" (and thus constituted unprotectable stock elements) while otherwise telling different stories.

An appeal was filed with the Ninth Circuit on the copyright claim.  In this appeal and the amicus brief prepared by attorneys from Pierce Law Group LLP and Lowe & Associates argued that the Ninth Circuit should adopt the "Selection & Arrangement" Test for determining copyright infringement to align itself with other circuits in regard to determining how "similarities" are defined and analyzed.  In other words the totality of the work and how the story progresses must be examined rather than merely dissecting individual scenes without reference to overall plot and progression of the picture.

At the recent oral argument, fellow CSEL attorney Steven T. Lowe orally argued the points raised in our amicus brief.  An appellate decision should be rendered in the coming months.  For those interested in watching the oral argument, please click here:  CSEL argues for Artist's Rights Before 9th Circuit.

Regardless of how the appellate court rules, this unfortunate occurrence demonstrates once again, the vital importance of having at very least some basic written understanding of what each party expects from a collaborative relationship before that relationship begins-- and it should include a brief discussion of what is permitted to happen with the intellectual property if the collaboration falls apart.

Pierce Law Group LLP attorney Vera Golosker was instrumental in drafting the amicus brief tendered to the court on behalf of Dan Rosen.