555 F. App'x 31
2d Cir.2014Background
- Plaintiff Marcus Webb alleged that the film The Expendables copied his screenplay The Cordoba Caper and sued defendants including Sylvester Stallone and several production companies for copyright infringement.
- District Court (Rakoff, J.) granted summary judgment to defendants; Webb appealed claiming genuine disputes about copying and improper appropriation.
- The appeal concerns whether Webb proved (1) actual copying and (2) improper appropriation (substantial similarity) between Cordoba and Expendables.
- The Second Circuit affirmed but on alternate grounds: it held the works are not substantially similar in their total concept and overall feel.
- Court emphasized differences in tone, theme, characters, setting, imagery, and pacing: Expendables is a 1980s-style action/mercenary film; Cordoba is a cunning, human-focused heist with distinct cultural imagery.
- Because the works lack substantial similarity in protectible elements, no reasonable juror could find unlawful appropriation, so infringement fails.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Webb established actual copying of Cordoba by defendants | Webb argued circumstantial evidence (access, similarities, expert testimony) supports copying | Defendants denied copying; district court found no genuine dispute on copying | Court did not decide copying; affirmed on alternate ground (no substantial similarity) |
| Whether Expendables improperly appropriated protectible elements of Cordoba (substantial similarity) | Webb claimed the two works share probative similarities in plot, characters, and sequence | Defendants argued the total concept and overall feel differ markedly (action vs. caper; different imagery and tone) | Held for defendants: no substantial similarity in total concept and overall feel; infringement fails |
| Proper standard for substantial similarity review | Webb urged comparison of theme, plot, sequence, pace, setting, characters | Defendants relied on precedents stressing total concept and feel and protectible elements analysis | Court applied total concept and overall feel test and found the works dissimilar |
| Whether any remaining arguments raise triable issues | Webb raised other arguments on appeal | Defendants maintained sufficiency of summary judgment | Court rejected remaining arguments as without merit |
Key Cases Cited
- Jorgensen v. Epic/Sony Records, 351 F.3d 46 (2d Cir. 2003) (elements required to prove copyright infringement)
- Castle Rock Entm’t, Inc. v. Carol Publ’g Grp., Inc., 150 F.3d 132 (2d Cir. 1998) (distinguishing actual copying and unlawful appropriation)
- Boisson v. Banian, Ltd., 273 F.3d 262 (2d Cir. 2001) (circumstantial proof of copying and need to show substantial similarity)
- Streetwise Maps, Inc. v. Van Dam, Inc., 159 F.3d 739 (2d Cir. 1998) (protectible elements and substantial similarity requirement)
- Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57 (2d Cir. 2010) (total concept and overall feel test for substantial similarity)
- Tufenkian Import/Export Ventures, Inc. v. Einstein Moomjy, Inc., 338 F.3d 127 (2d Cir. 2003) (analysis of aesthetic decisions and overall feel)
- Williams v. Crichton, 84 F.3d 581 (2d Cir. 1996) (comparison factors: theme, characters, plot, sequence, pace, setting)
- Walker v. Time Life Films, Inc., 784 F.2d 44 (2d Cir. 1986) (affirming dismissal where no substantial similarity)