'Walk of Shame' Producers Beat Script Theft Lawsuit

Elizabeth Banks, who was one of the defendants after taking a pitch meeting with the plaintiff, also prevails.
Jamie Trueblood/Focus World

The production companies behind the 2014 film, Walk of Shame, as well as its lead star Elizabeth Banks, have prevailed in a lawsuit alleging the script about a reporter's journey after a one-night stand was stolen.

The copyright and breach-of-implied-contract complaint was filed by Shame on You Productions, operated by Dan Rosen, who alleged the film was illicitly derived from his screenplay "Darci's Walk of Shame." He claimed that in 2007, he met with Banks and her husband, Max Handelman, who produces films through Brownstone Productions, to pitch the screenplay. Despite supposed interest, Banks and Handelman never got back to Rosen, who learned in late 2014 of a Walk of Shame production credited to writer/director Steven Brill.

The lawsuit would commence against Banks, Handelman, Brill, Sidney Kimmel Entertainment, Film District and Lakeshore Entertainment. The parties engaged in a brutal discovery process where each side heaped angry words on the other.

In an opinion on Friday, U.S. District Judge Margaret Morrow agrees with the plaintiff that the facts plausibly suggest that many of the defendants had direct access to Rosen’s screenplay. This means that Rosen's company needed to satisfy a lower standard of proof to show substantial similarity. The lawsuit still falls short.

Judge Morrow looks at the articulable similarities in the plot, themes, dialogue and other elements of the two works to determine whether it rises to a viable copyright claim when common, non-protectible elements are stripped away.

She writes that "many of the purported similarities Shame on You identifies flow directly from the basic premise of a walk of shame," which falls as scenes-à-faire.

The judge acknowledges there's certainly similarities in the premise of both works, and the elements that flow from this premise, but that each story fundamentally tells a different story. "Walk of Shame is the story of a conservative news anchor whose goal in life is to achieve perfection," she writes. "Darci’s Walk of Shame is primarily a romantic comedy. Love and finding the 'right guy' are the focal points of the narrative ... "

Ultimately, after analyzing the works in full, the judge writes the similarities are only "abstract and generalized." The judge also declines to exercise jurisdiction over the contract claim. It's possible that Rosen could pursue such a claim in state rather than federal court, or file an appeal over aspects of the dismissal such as the judge's refusal to consider extrinsic evidence like experts who offered opinions about the similarities, but for now, the lawsuit is dismissed. Here's the full opinion.

David Aronoff and Ilyssa Adler at Fox Rothschild were the lead attorneys for Broken Road Productions. The other defendants were represented by Stephen Mick and Devin Stone of Barnes & Thornburg.

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