2008 in Review: Documentary Lawsuit Provides Reminder That Historical Facts Cannot be Copyrighted

In Novak, et. al. v. Warner Bros. Pictures LLC, et. al., two documentarians who produced a film about the Marshall University football program claimed that Warner Brothers produced and released a motion picture, “We Are Marshall,” that infringed on their copyrights in the documentary.

On October 20, 2008, the court granted Warner Brother's Motion for Summary Judgment. According to the Hon. Gary Allen Feess, who also presided over the Watchmen copyright lawsuit, the plaintiffs (the documentarians) had the burden to prove that the two films were “substantially similar” under current US copyright doctrine. Warner Brothers successfully argued that that the works are similar only in that they both deal with events surrounding a November 14, 1970 airplane crash, and that those events are historical facts in which no one can claim a copyright interest.

The Asylum is Back with The Terminators

In December 2008, this blog featured a discussion of the legal ramifications of The Asylum's business model. For those who need a refresher, The Asylum releases low-budget films with titles, marketing materials and release dates designed to ride the promotional campaigns of bigger studio releases. Now, The Asylum is coming out with a new "mockbuster": The Terminators. The movie is being released on April 28, 2009; Terminator: Salvation hits theaters on May 21, 2009.

2008 in Review: Zombie Video Game Did Not Infringe on Dawn of the Dead Rights

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.

2008 in Review: Presence of Pinball Machine in Mel Gibson Movie Was Not Infringement

Gottlieb Development LLC distributes and sells the "Silver Slugger" pinball machine, which features copyrighted designs. The pinball machine appears in the background of a short scene in the 2000 Mel Gibson film What Women Want.

In response to portrayal of the machine in the film, Gottlieb filed various claims against the film's distributor (Paramount), including copyright infringement. On Dec. 29, 2008, an opinion was issued in the case, which was docketed as Gottlieb Development LLC v. Paramount Pictures Corp. The court found that Paramount’s use of Gottlieb’s "Silver Slugger" pinball machine in the background of the scene in What Women Want was de minimis and that Gottlieb's copyright claim was not actionable.

Stan Lee Lawsuits: Evil Clone Edition

Now that the east coast Stan Lee comic book lawsuit has been thoroughly described, it is time to focus on legal "evil clone" on the west coast: QED Productions, LLC, et al. v. Nesfield, et al. The facts are rather convoluted.

Stan Lee and his partner Peter Paul incorporated Stan Lee Entertainment (SLE) in 1998. Lee entered an employment agreement with SLE in which he assigned the rights to various copyrights and trademarks, which included materials like Stan's Evil Clone (Evil Clone), to the corporation in exchange for salary and stocks. Later in 1999, SLE merged with a Delaware corporation called Stan Lee Media, Inc. (SLMI-DE). In that same year, SLMI-DE became a subsidiary of a Colorado company called Stan Lee Media, INC. (SLMI-CO). The company was originally known as Boulder Capital Opportunities, LLC.

SLMI-DE and SLMI-CO filed for Ch. 11 bankruptcy in 2001. With the approval of the bankruptcy judge, all parties negotiated an agreement through which the assets of SLMI-DE would be sold to SLC, LLC, which was to be "creatively controlled" by Stan Lee. SLC was never formed. Instead, Lee transferred all of the rights to a company called QED, LLC. This transaction was was never approved by the bankruptcy judge.

QED, LLC then filed filed a complaint on January 9, 2007 against against the people behind SMLI-DE and SLMI-CO. Two amended complaints were ultimately filed. The second one, which contained claims including copyright infringement, trademark infringement and cybersquatting, was filed on August 25, 2008. QED, LLC eventually filed a Motion for Summary Judgment and the trial judge's ruling, which instigated the recent battle of the press releases, was issued on January 20, 2009. In this order, the trial court judge found that Lee's transfer of assets to QED, LLC was void inbecause it violated the automatic stay imposed when SLMI-DE and SLMI-CO filed bankruptcy. The case is now closed pending the outcome of related litigation in Colorado.

1. QED v. Nesfield Order Denying Plaintiff's Motion for Partial Summary Judgment As to Standing

Upcoming Topics

In addition to the usual posts about new and pending lawsuits, Film Esq. will soon begin a run down of some of the most interesting film and comic book related litigation from 2008. Topics include zombies, fast cars, pinball, video games and the usual legal conundrums surrounding copyright, trademark and contracts.

What Rights Did Stan Lee Actually Give Away?

On October 15, 1998, Stan Lee entered an employment agreement with Stan Lee Entertainment, Inc. (SLE). The extremely broad assignment clause in this agreement is crucial to the plaintiff's claims for co-ownership in key Marvel comic book copyrights that was filed on January 20, 2009. The clause, which was pulled directly from the complaint with all original emphases, is as follows:

I [Stan Lee] assign, convey and grant to [Stan Lee Entertainment, Inc.] forever, all right, title and interest I may have or control, now or in the future, in the following: Any and all ideas, names, titles, characters, symbols, logos, designs, likenesses, visual representations, artwork, stories, plots, scripts, episodes, literary property, and the conceptual universe thereto, including my name and likeness (the 'Property') which will or have been in whole or in part disclosed in writing to, published, merchandised, advertised, and/or licensed by [Stan Lee Entertainment, Inc.] its affiliates and successors in interest and licensees (which by agreement iures to [Stan Lee Entertainment, Inc.'s] benefit) or any of them and my copyrights, trademarks, statutory rights, common law, goodwill, moral rights and any other rights whatsoever in the Property in any and all media and/or fields, including all rights to renewal or extensions of copyright and make applications or institute suits therefore (the 'Rights').

1. Stan Lee Media, Inc. complaint