District court denies motion to dismiss copyright infringement claim, finding record insufficient on motion to dismiss to separate protectable and unprotectable element of plaintiff’s zombie-themed comic book as required by Ninth Circuit’s extrinsic test for substantial similarity.
Plaintiff Melvin Smith, creator of the zombie-themed comic book Dead Ahead, brought claims for copyright infringement against defendants AMC Networks Inc., Skybound Productions Inc. and others involved in the production of the AMC television series “Fear the Walking Dead,” a spinoff of the hit series “Walking Dead.”
The district court denied defendants’ motion to dismiss the copyright infringement claim. Noting that ownership of all registered versions of Dead Ahead and defendants’ access to the comic book series were undisputed, the court turned to the issue of substantial similarity between the works. At the outset, the court denied defendants’ motion to take judicial notice of “generic elements of action-adventure, thriller, and horror films and television series, including those involving invasions or outbreaks of some sort and those that take place at sea.” Noting that defendants had cited “more than a dozen books, films, Wikipedia articles, and websites,” none of which were referenced in plaintiff’s complaint, and that defendants had not asked the court to take judicial notice of these supporting sources, the court concluded that no legal authority existed to support the taking of judicial notice that certain concepts are generic based on a party’s sole representation that underlying sources so establish. Citing to Ninth Circuit precedent, the court concluded that it could not take judicial notice of any facts “subject to reasonable dispute” ― including the generic nature of these themes.
Because defendants were asking the court to consider evidence outside the four corners of the complaint and to decide “factual disputes over the similarities and differences between Dead Ahead and ‘Fear the Walking Dead,’ including whether certain elements of Dead Ahead are protectable under copyright law,” the court concluded that defendants were essentially seeking summary judgment. Citing to Ninth Circuit precedent requiring that the application of the extrinsic test for substantial similarity requires both the “analytical dissection” of the works and expert testimony, and the insufficiency of the record that prevented the court from separating the unprotectable elements from the protectable elements in Dead Ahead, the court denied defendants’ motion to dismiss the copyright claim. The court also denied defendants’ motion to dismiss a claim for breach of fiduciary duty.
Summary prepared by Jonathan Zavin and Lisa Rubin