IP Law Daily, COPYRIGHT—2nd Cir.: The Expendables movie was not copied from author’s unpublished screenplay, (Feb 4, 2014)

By Cheryl Beise, J.D.

The U.S. Court of Appeals in New York City has affirmed a district court’s summary judgment dismissing an author’s lawsuit claiming that Sylvester Stallone’s motion picture The Expendables was copied from the author’s copyrighted screenplay (Webb v. Stallone, February 3, 2014, Per Curiam). The appellate court based the affirmation on grounds different from the lower court.

In December 20120, the federal district court in New York City granted summary judgment in favor of Stallone and others involved in producing The Expendables movie, on the ground that author David Webb failed to establish that the defendants actually copied his unpublished screenplay, titled The Cordoba Caper. The Second Circuit affirmed the judgment that the defendants did not improperly appropriate Webb’s work on the ground that the parties’ works were not substantially similar.

To survive a motion for summary judgment in a copyright infringement case, a plaintiff must present evidence to show (i) ownership of a valid copyright; and (ii) unauthorized copying of the copyrighted work. Because direct evidence of copying is seldom available, a plaintiff may establish copying circumstantially, through proof of “access to the copyrighted work” and “substantial similarity” between the accused work and the protectable elements of the infringed work. In determining substantially similarity, courts compare the total concept and overall feel of the works and examine the similarities in such aspects as theme, characters, plot, sequence, pace, and setting.

In this case, the total concept and, in particular, the overall feel, of the two works were “quite distinct,” the court determined. The Expendables is a 1980s-era gunfire-riddled “pure action” mercenary story, with scenes dominated by explosions, gunfire, and imagery of skulls, tattoos, and prominently displayed muscles. The Cordoba Caper, on the other hand, recounts the true tale of a cunning heist, using sensitive and human characters, female figures who are independent and capable, and imagery that includes Mayan villages, horseback rides through the Andes mountains, and Native American ceremonial costumes, food, and music. Even if the works shared some common elements, the manners in which they expressed the stories felt dissimilar on the whole, according to the court.

Therefore, no reasonable jury could conclude that The Expendables movie and The Cordoba Caper screenplay were substantially similar sufficient to prove unlawful appropriation.

The case is No. 13-324-cv.

Attorneys: David M. Kohane (Cole, Schotz, Meisel, Forman & Leonard, P.A., LLP) for Marcus Webb. Tom J. Ferber (Pryor Cashman LLP) for Sylvester Stallone, Millennium Films, Nu Image Films, Lions Gate Films, Inc., Lions Gate Home Entertainment, Inc., Alta Vista Productions, Inc., Alta Vista Productions, LLC, and Double Life Productions, Inc.

Companies: Millennium Films; Nu Image Films; Lions Gate Films, Inc.; Lions Gate Home Entertainment, Inc.; Alta Vista Productions, Inc.; Alta Vista Productions, LLC; Double Life Productions, Inc.

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