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District court dismisses popular internet content creator’s copyright infringement suit against comedian Michael Che, ruling that “HomeGrrl” segments featured on HBO Max show That Damn Michael Che are not substantially similar to plaintiff’s “Homegirl Hotline” videos.
Plaintiff Kelly Manno, an internet content creator with over 1 million followers on TikTok, created and posted two videos on TikTok, Instagram and Facebook in August and September 2020 titled “Homegirl Hotline.” Defendant Michael Che is a well-known comedian and, since 2021, has starred in a sketch comedy series titled That Damn Michael Che, airing on HBO Max. Manno brought a copyright infringement action against Che and others involved in the series, claiming that an April 2021 episode of That Damn Michael Che infringed the copyrights in her videos.
Plaintiff’s “Homegirl Hotline” videos, each one minute long, center around a fictional service hotline through which callers can speak to a dispatcher and order a “homegirl” to aggressively deal with personal conflicts for them. In the first video, the dispatched homegirl throws out the belongings and slashes the tires of a customer’s cheating husband. In the second video, the homegirl is called to beat the mother of a child bully. The episode of the Michael Che series features 10 comedy sketches, four of which are built around the use of a fictional mobile app called “HomeGrrl” through which users can dispatch a homegirl to help deal with conflicts. As reflected in these segments, the homegrrl app is for the specific purpose of allowing male users to order a homegirl to fight women who have attacked or bullied the male user.
Defendants moved to dismiss the complaint on the grounds that plaintiff had not sufficiently alleged that defendants had access to Manno’s videos (and thus could not have copied them), and that any alleged copying would not be actionable in any case because the parties’ works are not substantially similar with respect to their copyright elements. The court held that Manno had sufficiently alleged that defendants could have accessed her videos based on their wide dissemination on multiple streaming platforms, but ruled that the works were not substantially similar as a matter of law.
Applying the Second Circuit’s test for substantial similarity, the court explained that two works can be deemed substantially similar if an “ordinary observer” would overlook differences between the two works and regard the alleged copy as having been appropriated from the original work. Because the original work contains both protectable and unprotectable elements, however, the court applied the “more discerning ordinary observer test,” which “requires substantial similarity between those elements, and only those elements, that provide copyrightability to the allegedly infringed work” and also requires extracting unprotectable elements from consideration.
Plaintiff alleged that the protectable elements of her videos included: (1) the comedic depiction of a service through which a customer specifically orders a homegirl to fight one’s battles; (2) the order-and-arrival structure that includes the act of ordering a homegirl and her subsequent arrival to carry out her services; (3) the themes of violence and vengeance; and (4) the visual characteristics of the homegirls themselves. The court rejected each of these elements as insufficient to establish substantial similarity between the parties’ works.
First, the court observed, the parties’ works used different underlying premises regarding the need for a homegirl. Whereas Manno’s videos depict women ordering a homegirl to assist with various personal conflicts out of convenience, defendants’ episode involves a mobile app specifically designed for men in need of a homegirl to fight their battles against other women because, in the court’s words, “he cannot be seen striking a woman.” The shared idea of “hiring a homegirl to fight battles,” the court held, is not protectable. The court similarly ruled that the order-and-arrival structure flows naturally and necessarily from the equally unprotectable premise of hiring a service to address a problem, such that the shared structure constituted unprotectable scènes à faire. The generic themes of violence and vengeance were also deemed not to be protectable. And, finally, the court observed that no protectable similarities existed between the various homegirls depicted in defendants’ episode and the single homegirl depicted in plaintiff’s videos.
Accordingly, the court granted defendants’ motion to dismiss plaintiff’s claims for direct, contributory and vicarious infringement.
Summary prepared by Wook Hwang and Marwa Abdelaziz
Plaintiff Kelly Manno, an internet content creator with over 1 million followers on TikTok, created and posted two videos on TikTok, Instagram and Facebook in August and September 2020 titled “Homegirl Hotline.” Defendant Michael Che is a well-known comedian and, since 2021, has starred in a sketch comedy series titled That Damn Michael Che, airing on HBO Max. Manno brought a copyright infringement action against Che and others involved in the series, claiming that an April 2021 episode of That Damn Michael Che infringed the copyrights in her videos.
Plaintiff’s “Homegirl Hotline” videos, each one minute long, center around a fictional service hotline through which callers can speak to a dispatcher and order a “homegirl” to aggressively deal with personal conflicts for them. In the first video, the dispatched homegirl throws out the belongings and slashes the tires of a customer’s cheating husband. In the second video, the homegirl is called to beat the mother of a child bully. The episode of the Michael Che series features 10 comedy sketches, four of which are built around the use of a fictional mobile app called “HomeGrrl” through which users can dispatch a homegirl to help deal with conflicts. As reflected in these segments, the homegrrl app is for the specific purpose of allowing male users to order a homegirl to fight women who have attacked or bullied the male user.
Defendants moved to dismiss the complaint on the grounds that plaintiff had not sufficiently alleged that defendants had access to Manno’s videos (and thus could not have copied them), and that any alleged copying would not be actionable in any case because the parties’ works are not substantially similar with respect to their copyright elements. The court held that Manno had sufficiently alleged that defendants could have accessed her videos based on their wide dissemination on multiple streaming platforms, but ruled that the works were not substantially similar as a matter of law.
Applying the Second Circuit’s test for substantial similarity, the court explained that two works can be deemed substantially similar if an “ordinary observer” would overlook differences between the two works and regard the alleged copy as having been appropriated from the original work. Because the original work contains both protectable and unprotectable elements, however, the court applied the “more discerning ordinary observer test,” which “requires substantial similarity between those elements, and only those elements, that provide copyrightability to the allegedly infringed work” and also requires extracting unprotectable elements from consideration.
Plaintiff alleged that the protectable elements of her videos included: (1) the comedic depiction of a service through which a customer specifically orders a homegirl to fight one’s battles; (2) the order-and-arrival structure that includes the act of ordering a homegirl and her subsequent arrival to carry out her services; (3) the themes of violence and vengeance; and (4) the visual characteristics of the homegirls themselves. The court rejected each of these elements as insufficient to establish substantial similarity between the parties’ works.
First, the court observed, the parties’ works used different underlying premises regarding the need for a homegirl. Whereas Manno’s videos depict women ordering a homegirl to assist with various personal conflicts out of convenience, defendants’ episode involves a mobile app specifically designed for men in need of a homegirl to fight their battles against other women because, in the court’s words, “he cannot be seen striking a woman.” The shared idea of “hiring a homegirl to fight battles,” the court held, is not protectable. The court similarly ruled that the order-and-arrival structure flows naturally and necessarily from the equally unprotectable premise of hiring a service to address a problem, such that the shared structure constituted unprotectable scènes à faire. The generic themes of violence and vengeance were also deemed not to be protectable. And, finally, the court observed that no protectable similarities existed between the various homegirls depicted in defendants’ episode and the single homegirl depicted in plaintiff’s videos.
Accordingly, the court granted defendants’ motion to dismiss plaintiff’s claims for direct, contributory and vicarious infringement.
Summary prepared by Wook Hwang and Marwa Abdelaziz