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Muller v. Twentieth Century Fox Film Corp.

  • In a copyright infringement case, court grants the defendants’ summary judgment motion, finding no actual copying of the copyrighted work or improper appropriation of the protectable elements in the copyrighted work.
Plaintiff screenwriter James Muller sued defendants Twentieth Century Fox Film Corporation, Paul Anderson and Davis Entertainment, Inc., alleging that defendants’ motion picture, AVP: Alien vs. Predator (the “Film), infringed the copyright to his screenplay, entitled The Lost Continent (the “Screenplay”). Plaintiff also asserted a claim for breach of implied contract.

Defendants moved for summary judgment. Following a lengthy discussion of the two works at issue, and a detailed legal analysis, the court granted that motion.

To prevail on a copyright infringement claim, a plaintiff must prove: (1) ownership of a valid copyright; and (2) copying of elements of the work that are original. For purposes of their motion for summary judgment, the defendants did not contest the validity of the plaintiff's certificate of copyright registration for the Screenplay. Accordingly, the court focused its analysis on the copying prong, which is “comprised of two requirements: actual copying and improper appropriation.”

Plaintiff sought to prove “actual copying” by showing that defendants had access to the Screenplay, and that the Film was “probatively similar.” The court was not persuaded. With respect to access, the court found that plaintiff had, at best, alleged nothing more than “bare corporate receipt.” Noting the absence of any evidence to establish a nexus between the recipients and the alleged infringers, the court concluded that plaintiff’s “conclusory and conjectural assertions” were insufficient to raise a triable issue of access.

As to “probative similarity,” the plaintiff relied heavily on his expert’s reports. Though those reports listed several hundred alleged similarities, the court gave the reports little weight because they emphasized “random similarities scattered through the works,” rendering them “inherently subjective and unreliable.” According to the court, plaintiff’s expert “misse[d] the forest from the trees, as he ignore[d] the inescapable fact that the two works tell two very different stories.”

Turning to the defendants’ “independent creation” defense, the court noted that defendants had submitted indisputable evidence that the Film was independently created. Noting that the Film sought to capitalize on the highly successful Alien and Predator franchises, and that the Film was partly inspired by a Fox-owned 1990 comic book, the court concluded that no inference of copying could be drawn: “Where, as here, defendants’ own prior works contain the same elements, they have ‘no reason, beyond the illicit thrill of copyright infringement, to copy wrongfully from another that [they] could legally copy from [themselves].’”

Plaintiff sought to demonstrate “improper appropriation” by establishing that the “overall concept and feel,” theme, plot, characters, setting, pace, sequence of events, and dialogue of the Film were substantially similar to the protectable elements of the Screenplay.

The court found no substantial similarity in the “overall concept and feel” of the two works. The Film involved a conflict between Aliens and Predators, with the humans caught in the middle. The Screenplay featured humans searching for the lost city of Atlantis. Instead of extraterrestrial creatures from space, the Screenplay featured a character called “Jahbulon.” Jahbulon was “Atlantis’ leader from thousands of years ago, who emerge[d] from a tomb.” Noting that the “overall concept and feel” of discovering Atlantis had appeared often in pop culture, the court found that neither plaintiff’s concept nor the elements that flowed from it could be protected.

The court rejected plaintiff’s argument that the plots of the two works were substantially similar. It held: “While both works tell the story of an expedition team that travels to Antarctica where they discover an underground ancient pyramid or city, and subsequently encounter hostile forces, ‘in moving to the next level of specificity, differences in plot and structure far outweigh this general likeness.’”

With respect to characters, the court found nothing more than superficial similarities and shared general traits. After analyzing the two works’ settings, pace, sequence of events and dialogue, the court concluded that summary judgment was appropriate because “the only similarities between the Screenplay and the Film are insubstantial, and pertain to non-copyrightable ideas, unprotected stock themes, or ‘scenes-a-faire,’ and not to protected expression.”

Turning to plaintiff’s claim for breach of implied contract claim, the court noted that it was equivalent to his copyright claim, and thus preempted by Section 301 of the Copyright Act.