On June 22, 2022, the United States District Court for the Southern District of New York dismissed TikToker Kelly Manno’s copyright infringement claim against comedian Michael Che, over a skit that Che performed on his TV show on HBO Max.
TikToker Manno’s two-part skit, “HomeGirl Hotline,” features a service where women call a dispatcher to request “homegirls” to solve their problems. A homegirl is a female friend that is loyal and is always just a phone call away. In the first video posted on August 9, 2020, a woman enlisted a homegirl to help her discard her cheating husband’s belongings. The second video posted on September 4, 2020, featured a homegirl who was enlisted to beat up the mother of a bully. At the time of filing the complaint, the videos were collectively viewed on TikTok over 800,000 times and received over 180,000 likes. Manno, who has over one million followers on TikTok, also began selling related “HomeGirl Hotline” merchandise.
Che’s skits appeared in the April 26, 2021 episode of his show “That Damn Michael Che.” The skits consisted of four different segments beginning with Che confessing to a priest. During one confession, Che recalled being at a nightclub and a female bouncer embarrassed him by denying him entry to the club. He asks the priest whether he could punch a woman for humiliating him. Of course, Che clarified, he would never actually do that. The four segments of the skit then feature men using a “homegrrl” app. The first segment involves a man calling a homegirl to fight a rude female cashier in a grocery store; the second segment featured a man calling a homegirl to deal with a female driver who had become irate after a car accident; the third segment involved a man using the “homegrrl” app to stop a woman who falsely accused his son of stealing her phone; and the final segment is about a man who calls a homegirl to stop a woman who is sharing an embarrassing photo of him.
On February 11, 2022, Che and HBO filed a motion to dismiss the case.
In order to survive the motion to dismiss, Manno had to show that the defendants copied the “copyrightable elements” of her work.
This is demonstrated in the Southern District of New York through proof of access to the work, and a substantial similarity of the protectable elements of the plaintiff’s work as viewed by an “ordinary observer.” In this case, the court found “access” through Manno’s wide dissemination of her TikTok Videos. The court concluded that defendants had a “reasonable possibility” of viewing Manno’s videos. However, the court concluded that Manno had not shown that the defendants copied her skits.
The court reasoned that copyright law protects the expression of an idea, not the idea itself. Where an idea ends and expression begins has troubled courts for decades. The court concluded the base idea of callers requesting a homegirl to fight their battles was not protectible. The court found that Manno’s videos feature a woman calling a homegirl for various reasons, whereas Che’s skits involve men requesting a homegirl to fight other women. In this author’s opinion, this is a distinction without a difference.
Next, the court rejected Manno’s argument that the “order-and-arrival” structure was the expression of an idea and was used in both skits. Instead, the court found that the order-and-arrival structure is the most logical and general form of providing a service. The court found that this part of both skits was essentially a “scène-à-faire,” i.e., something indispensable and common in the genre. In this author’s opinion, what is or is not a scène-à-faire is highly subjective. Similarly, the court found that any similarity between homegirls inflicting violence was also an unprotectable idea.
Manno also asserted that there were similarities in the characters. However, the court found that the only similarities between Manno’s character and Che’s homegirls were that they’re women who wear sneakers.
Author’s note: when courts “deconstruct” a work and evaluate each element separately to determine whether it is “protectable,” plaintiffs always lose. The court should analyze the combination or “selection and arrangement” of elements. The similarities appear, by all indications, to be substantial. Candidly, in this Author’s opinion, Che got away with stealing Manno’s valuable intellectual property.
Kelly Manno is represented by Hillel Ira Parness of Parness Law Firm, PLLC.
Michael Che and the remaining defendants are represented by Nicolas Jampol, Cydney Swofford Freeman, and Raphael Holoszyc-Pimentel of Davis Wright Tremaine LLP located in Los Angeles.
The case is Kelly Manno v. Michael Che Campbell et al., case number 1:21-cv-10642, in the U.S. District Court for the Southern District of New York.
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