Plaintiff Marcus Webb brought a copyright infringement action against Sylvester Stallone, cowriter David Callaham and various entities involved in the production and distribution of the 2010 motion picture The Expendables. Defendants moved for summary judgment and the court granted the motion in its entirety.
After watching news reports about Blackwater and mercenaries, defendant David Callaham suggested to Warner Bros. that he write a script about a group of American mercenaries taking on a foreign dictator. He sent Warner Bros. three drafts of the script, tentatively titled Barrow, the last of which was sent Jan. 24, 2006.
Plaintiff Marcus Webb, a writer for Walker Digital LLC and various trade magazines, wrote a screenplay, The Cordoba Caper, featuring American mercenaries who are hired to stop a genocide. The story had two villains, General Garza, a Latin-American dictator, and Colonel Torres, his second-in-command. Webb wrote his screenplay in 2006, after Callaham finished his last draft of Barrow. In 2008, Stallone told his agents that he wanted to do an action-oriented ensemble film. In his declaration in support of the motion for summary judgment, Stallone stated that he used Callaham’s script as a “starting point” for his screenplay for The Expendables, and he denied ever seeing Webb’s script.
Defendants argued that Webb could not establish that defendants infringed his copyright for three reasons: (1) Callaham completed Barrow, defendants’ source for The Expendables, before plaintiff wrote The Cordoba Caper, establishing creation independent of Webb’s work; (2) Webb could not show that Stallone had access to The Cordoba Caper when Stallone drafted The Expendables; and (3) no substantial similarities existed between the works.
The court rejected defendants’ argument that because Barrow was written before The Cordoba Caper, and because Stallone represented that Barrow served as the starting point for The Expendables, defendants had established independent creation of The Expendables. Noting that the affirmative defense of independent creation is generally a question for the fact finder, the court concluded that Stallone’s declaration alone, attributing The Expendables to one screenplay and disclaiming attribution to another, was insufficient to carry defendants’ burden of strong, convincing and persuasive evidence of independent creation. The court found this to be especially true in light of the fact that Stallone had previously submitted a declaration in a Writer’s Guild of America arbitration claiming that The Expendables was “an original” that did not use “one word, one comma, one iota” from Barrow.
Next, the court considered whether Webb had presented any evidence that Stallone had access to The Cordoba Caper screenplay prior to writing The Expendables. To prove access, plaintiff needed to show either a particular chain of events or link from his work to the allegedly infringing work, or that the plaintiff’s work is widely disseminated. The court found that Webb’s circumstantial evidence of access was weak at best and required “almost endless speculation to explain how Webb’s submission of The Cordoba Caper to amateur screenplay competitions ended up in front of Stallone.” The court noted that even after full discovery, plaintiff had submitted no evidence that anyone who worked for Stallone or even anyone who worked at the companies that worked for Stallone had any connections to any of these screenwriting competitions. “In the absence of this or other evidence presenting a reasonable possibility that Stallone viewed The Cordoba Caper, as opposed to mere speculation or conjecture, plaintiff has failed to raise a genuine issue of material fact on access.”
Webb also argued that, even in the absence of sufficient evidence of access, the works were strikingly similar, precluding any possibility of independent creation. The court disagreed, finding that no reasonable juror could find that The Expendables was so nearly identical to The Cordoba Caper as to preclude any reasonable possibility of independent creation. Webb listed 20 examples of alleged striking similarities between The Expendables and The Cordoba Caper, but the court concluded that “none of these examples [is] sufficient to permit a reasonable juror to find ‘striking similarity,’ whether considered independently or in the aggregate.” By way of example, the court noted that plaintiff asserted that the names of the antagonists in both works included a Latin-American dictator named General Garza. The court rejected this alleged similarity, noting that Garza is the 34th most common Hispanic surname in the United States. Similarly, the court rejected plaintiff’s assertion that the lead female characters in both works were strikingly similar, noting “the idea of a heroine allied with the protagonist who is related to the antagonist and captured by the antagonist’s minions is hardly new,” and that beyond these stock similarities, the characters were substantially different. The court also rejected plaintiff’s argument that a number of action scenes were strikingly similar, holding that the scenes were scene a faire, stock devices standard in action movies. Stating that it had not only considered all the allegedly most egregious similarities between the works, but “the entire litany” of plaintiff’s “striking similarities,” the court found “none of them remotely striking or legally sufficient.” The court concluded: “Whether considered at the high-concept levels of plot, theme, pacing, etc., or at the detailed level of specific points, plaintiff has failed to show The Cordoba Caper is so ‘strikingly similar’ to The Expendables ‘as to preclude any reasonable possibility of independent creation.’”