In February 2008, Capcom, the creator of the video game Dead Rising filed a complaint against MKR Group, who own the copyrights in George Romero’s film Dawn of the Dead. Capcom’s complaint sought a declaratory judgment that it did not infringe any copyright, trademark, or other intellectual property rights of MKR in creating the video game. MKR later filed a third party complaint against Capcom, along with numerous counterclaims, including copyright infringement and violations of the Lanham Act. The case was docketed as Capcom Co., Ltd. v. MKR Group, Inc.
In an October 10, 2008 opinion, the court dismissed MKR Group’s copyright counterclaim. Using the objective “extrinsic test,” the court found that, as a matter of law, there was no substantial similarity between the Dead Rising video game and the Dawn of the Dead film. The court also dismissed MKR’s Lanham Act counterclaim. Although MKR sufficiently pled “source identifying elements,” the court found that a matter of law, those elements did not violate the Lanham Act. MKR’s remaining counterclaims were dismissed as preempted by the Copyright Act and the Lanham Act.