5:18-cv-03803
N.D. Cal.Jan 31, 2019Background
- Plaintiff Melvin Smith authored and registered a zombie-themed comic Dead Ahead (published 2008–2010, later republished as a graphic novel) and alleges AMC’s TV series Fear the Walking Dead copied substantial elements from it.
- Smith engaged David Alpert as his agent from 2008 to ~2013; Alpert and Robert Kirkman later served as executive producers on Fear the Walking Dead; AMC commissioned the series.
- Smith alleges season 2 of Fear the Walking Dead copies plot events, characters, dialogue, themes, setting, mood, and pacing from Dead Ahead (examples include refugees on a mid-size boat fleeing south, zombies at sea, engine-room scenes, abandoned resort/hotel settings, pirates, and similar character archetypes).
- Procedurally, defendants (AMC entities and Skybound-related defendants) moved to dismiss Smith’s second amended complaint under Rule 12(b)(6); Smith opposed. The Court considered requests for judicial notice and the pleadings.
- The Court found copyright ownership and defendants’ access adequately pleaded; it declined to resolve substantial similarity at the pleading stage because the extrinsic test requires analytical dissection and expert input and the record was insufficient.
- The Court also found Smith adequately pleaded breach of fiduciary duty and aiding-and-abetting based on Alpert’s agency and defendants’ alleged funding and collaboration, and denied dismissal of that claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Copyright — substantial similarity (extrinsic test) | Smith: numerous articulated similarities in plot, characters, dialogue, themes, setting, mood, pace show protectable substantial similarity | Defendants: similarities are generic or scenes-a-faire; record shows no protectable similarity and judicial notice should confirm generic elements | Denied dismissal: court cannot conduct extrinsic dissection on the pleadings; record insufficient and many elements may require expert analysis and factual development |
| Copyright — ownership & access | Smith: he registered Dead Ahead and alleges Defendants had access via Alpert and industry contacts | Defendants: did not dispute ownership or access | Ownership and access adequately pleaded; not contested |
| Judicial notice of purportedly generic elements | Smith: sought judicial notice of registrations for Defendants’ episodes (granted) | Defendants (AMC): asked court to judicially notice generic tropes based on external works (e.g., boats, maps, pirates) to show unprotectability | Denied: Court will not judicially notice disputed factual content or accept defendants’ broad characterization of generic concepts without appropriate record |
| Breach of fiduciary duty / aiding-and-abetting | Smith: Alpert breached fiduciary duty through self-dealing; other defendants substantially assisted by funding, developing, and collaborating | Defendants: alleged lack of substantial assistance or knowledge to support aiding-and-abetting liability | Denied dismissal: allegations that Alpert was Smith’s agent and that defendants funded, collaborated, and knew of Alpert’s relationship suffice at pleading stage to allege aiding-and-abetting and breach |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (construes Rule 8 plausibility standard)
- Ashcroft v. Iqbal, 556 U.S. 662 (clarifies pleading standard and that courts need not accept legal conclusions)
- Funky Films, Inc. v. Time Warner Entm’t Co., 462 F.3d 1072 (describes intrinsic vs. extrinsic substantial-similarity tests)
- Swirsky v. Carey, 376 F.3d 841 (explains need for analytical dissection and role of expert testimony under extrinsic test)
- Cavalier v. Random House, Inc., 297 F.3d 815 (discusses filtering unprotectable elements and scenes-a-faire doctrine)
- Three Boys Music Corp. v. Bolton, 212 F.3d 477 (defines proof of access requirement)
- Berkic v. Crichton, 761 F.2d 1289 (sets out elements of a copyright claim)