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“unprotectable idea of zombies in a mall”

March 23, 2012

In 2008, a Federal Court evaluated a copyright claim brought by the producers of the 1978 movie “Dawn of the Dead” against the video game “Dead Rising”. The Court found “wholly unprotectable [the] concept of humans battling zombies in a mall during a zombie outbreak”.

This intellectual property rights dispute, plucked from the world of marauding zombies, pits the owners of the rights to a well known film against the makers of a popular video game.


CAPCOM CO., LTD, et al., Plaintiffs/Third-Party Defendants, v. THE MKR GROUP, INC., Defendant/Third-Party Plaintiff.
NO. C 08-0904 RS
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION

Decided – October 10, 2008

See also Case filing documents from Feb 2008 -
and Reuters covering that filing in Feb 2008

The Court explains of MKR:

MKR owns the copyrights and trademarks to the 1979 motion picture “George A. Romero’s Dawn of the Dead” (hereinafter “Dawn of the Dead”), and its primary business is to monetize the value of that asset. MKR’s president and principal shareholder, Richard P. Rubinstein, produced the film, and the renowned “horror” film director, George A. Romero, directed it. Dawn of the Dead and the 2004 remake, not owned by MKR, are successful movies well known to the public. The original movie has sold over one million DVDs, has earned over $ 7,000,000 in its first two years of release, and has received praise from film critics. The movie’s success has spawned an extensive merchandise licensing program covering such items as action figures, t-shirts, Halloween costumes, masks, and postcards.

And of Capcom:

Capcom is a developer and distributor of video games for use on game consoles such as the Microsoft Xbox 360. Capcom’s video games have sold millions of units within the United States and overseas. On August 8, 2006, Capcom released in North America a single player horror video game called “Dead Rising” for use on the Xbox 360.

[Footnote]
1 According to Capcom, the survival horror genre of video games, akin to horror motion pictures, are typically dark, violent, and supernatural. The player’s goal is to “survive” long enough to escape from an isolated location overrun with monsters such as zombies. There is often a “safe haven” where the characters can rest, eat, regain strength, and remain safe from attack.
[End Footnote]

In 2004, Capcom contacted MKR to enquire about the availability of a license to use elements from Dawn of the Dead in a video game. Capcom, however, did not pursue the matter further. Instead, it placed on the front of the box containing the Dead Rising game a disclaimer reading: “THIS GAME WAS NOT DEVELOPED, APPROVED OR LICENSED BY THE OWNERS OR CREATORS OF GEORGE A. ROMERO’S DAWN OF THE DEAD TM [.]” Later in 2006, MKR discovered that Capcom applied to register “Dead Rising” as a trademark with the United States Patent and Trademark Office. MKR filed a notice of opposition against that application on January 29, 2007, which remains pending.

Continuing the Court explains details of the two works:

B. The Works at Issue

In Dawn of the Dead, a plague reanimates the dead into flesh eating zombies and threatens to destroy the United States. After escaping from Philadelphia via helicopter, a television traffic helicopter pilot, Stephen, his pregnant girlfriend, Francine, and Philadelphia SWAT team members, Roger and Peter, land on a helipad on the top of a small town’s shopping mall. Once in the mall, the four main characters barricade the complex, kill those zombies already inside, and then attempt to keep out others. Throughout the many months they are in the mall, the four main characters frequently visit its numerous abandoned shops in search of clothes, food, and weapons. Eventually, a motorcycle gang invades the mall, thereby opening the premises to a new zombie invasion. After the four main characters battle the intruders, Stephen and Roger fall victim to zombie bites and die agonizing deaths while Peter and Francine run to the mall’s roof and escape in their helicopter.

In Dead Rising, the video game player controls the main character, Frank West, a freelance photojournalist intent on photographing why the United States National Guard quarantined the fictional town of Willamette, Colorado. Frank discovers that the town is overrun with zombies. He takes pictures of the town from a helicopter and is then dropped off onto the rooftop of the town’s shopping mall, which has a helipad. At this point, the player must battle nonstop against zombies and other characters to search for the truth behind the town’s zombie infestation. The mall’s stores provide Frank with the resources he needs to survive such as weapons and supplies. Throughout the game, the player must use Frank’s camera to take pictures — more points are awarded for graphic photos. Depending in part upon critical choices made by the player, numerous characters of various kinds come and go as the game progresses. The ultimate goal is to survive for three days and return to the helicopter, having deciphered the cause of the zombie outbreak.

The Court then discusses whether to take judicial notice of some zombie history (and a citation against Wikipedia):

A. Judicial Notice

At the outset, pursuant to Rule 201 of the Federal Rules of Evidence, Capcom requests that the Court take judicial notice of: (1) the 1979 Dawn of the Dead movie and the Dead Rising video game; (2) numerous other zombie movies and video games; and (3) certain ideas and elements common and prevalent in such movies and games. While generally a court cannot consider material outside of the complaint when deciding a motion to dismiss under Rule 12(b)(6), a court may consider exhibits submitted with the complaint and those “documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading . . . .” Branch v. Tunnell, 14 F.3d 449, 453-54 (9th Cir. 1994) (overruled on other grounds). Thus, the contents of Dawn of the Dead and Dead Rising may be considered for purposes of this motion to dismiss. Exhibits one through four, which represent the works themselves and the corresponding script to the film, will also be considered as MKR does not question their authenticity.

Capcom’s remaining requests for judicial notice, however, must be denied. Rule 201 allows a court to invoke judicial notice for, “two kinds of facts: (1) those that are generally known within the court’s territorial jurisdiction; and (2) those that are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned, for example, almanac, dictionary, calendar or similar sources.” Walker v. Woodford, 454 F. Supp. 2d 1007, 1022 (S.D. Cal. 2006). In other words, “the fact must be one that only an unreasonable person would insist on disputing.” Id. (quoting United States v. Jones, 29 F.3d 1549, 1553 (11th Cir. 1994)).

As MKR asserts, it can hardly be said that the zombie movies and video games presented in exhibits six through forty-four are “generally known,” especially in light of the fact that many of these movies were made long ago, indeed in some instances as far back as 1932. These exhibits, therefore, do not qualify for judicial notice. See Zella v. E.W. Scripps Co., 529 F. Supp. 2d 1124, 1129 (C.D. Cal. 2007) (declining to take judicial notice of various specific shows not commonly known). The Wikipedia articles Capcom submits as a synopsis of these movies and video games are similarly inappropriate for judicial notice. See Nordwall v. Sec’y of Health & Human Servs., 2008 U.S. Claims LEXIS 86, 2008 WL 857661, at *7 n.6 (Fed. Cl. 2008) (“Wikipedia may not be a reliable source of information.”). Finally, while exhibit five, the script to Dead Rising, relates to the content of the video game in question, its authenticity cannot be determined by resort to irrefutable sources because it does not reflect who wrote it, nor when and for what purpose it was written, it was not filed with Capcom’s pending copyright for Dead Rising, and by its nature it may not track exactly how the game itself appears to the player.

Continuing, the Court addresses the similarities:

MKR presumably has highlighted those aspects of the video game it believes most substantially resemble its movie. Zella, 529 F. Supp. 2d at 1132; see Bethea, 2005 WL 1720631, at *10 (stating that it is plaintiff’s burden to identify the sources of alleged similarity between the works). The principal similarities between Dawn of the Dead and Dead Rising identified by MKR are that: (1) both works are set in a bi-level shopping mall; (2) the mall has a gun shop, in which action takes place; (3) the mall is located in a rural area with the National Guard patrolling its environs; (4) both works are set in motion by a helicopter that takes the lead characters to a mall besieged by zombies; (5) many of the zombies wear plaid shirts; (6) both works feature a subtext critique of sensationalistic journalism through their use of tough, cynical journalists, with short brown hair and leather jackets, as a lead male character; (7) both works feature the creative use of items such as propane tanks, chainsaws, and vehicles to kill zombies; (8) both works are a parody of rampant consumerism; (9) both works use music in the mall for comedic effect; and (10) Dead Rising’s use of the word “hell” references the tagline for Dawn of the Dead’s release (“When there’s no more room in hell, the dead will walk the earth.”). In short, MKR concludes that the two works share so many similarities that the critical divide between unprotectable ideas and the protectable expression of ideas has been bridged. See Feist, 499 U.S. at 344-45 (copyright law provides no protection for ideas, but only the expression of ideas).

But “scenes a faire” are not protectable:

“Scenes a faire,” where events flow naturally from generic plot-lines or sequences of events necessarily resulting from the choice of a setting or situation constitute one type of unprotectable idea. Metcalf v. Bochco, 294 F.3d 1069, 1074 (9th Cir. 2002). The boundary between idea and expression is an elusive one, with protection that covers the ‘pattern’ of the work, the sequence of events, and the development of the interplay of characters. Williams v. Crichton, 84 F.3d 581, 587-88 (2d Cir. 1996).

Continuing, the Court declares that the “concept of humans battling zombies in a mall during a zombie outbreak” is “wholy unprotectable”:

A comparison of the movie and the video game reveals profound differences. MKR has not identified any similarity between Dead Rising and any protected element of Dawn of the Dead. Rather, the few similarities MKR has alleged are driven by the wholly unprotectable concept of humans battling zombies in a mall during a zombie outbreak. Each one of MKR’s claimed similarities, as analyzed below, ultimately must be “filtered” out as unprotectable. See Idema, 162 F. Supp. 2d at 1177 (“This ‘filtration’ process is accomplished under the first part of the two-part analysis established by the Ninth Circuit to determine or assess ‘substantial similarity’ of an allegedly infringing work: the ‘extrinsic,’ or ‘objective’ test.”). Nearly all the similarities between the two works identified by MKR, upon close scrutiny, constitute nothing more than a collection of unprotectable elements thereby failing the extrinsic test and sending the copyright claim to its doom.

The Court goes on to detail comparisons on “Plot and Sequence of Events”, “Characters”, “Theme”, “Dialogue”, “Mood”, “Setting”, “Pace”, “Total Concept and Feel” :

a. Plot and Sequence of Events

The plot underlying each of the two works are not substantially similar. “Plot” consists of the sequence of events by which the author expresses his theme or idea in sufficiently concrete terms to warrant a finding of substantial similarity where it is common in both works. Zella, 529 F. Supp. 2d at 1135. Both Dawn of the Dead and Dead Rising contain a scene where the main characters arrive at a shopping mall by way of a helicopter. But even that similarity dissolves upon close inspection. In Dead Rising the central character, Frank, makes the helicopter journey from the infected town to the shopping mall roof and upon arrival at the helipad enters the “safe haven” part of the game where he is protected from attack. He then enters the mall and begins his quest to uncover the reason behind the zombie infestation.

By contrast, Dawn of the Dead does not immediately start at the mall. Instead, the four main characters escape from zombies in Philadelphia via helicopter. After flying for some time they come to a small zombie-infested town where they spot a mall. They decide to land on the helipad on top of the mall and enter the safe portions of the interior. The characters then begin to rid the mall of all zombies. From this point onwards the plot and sequence of events in each work move in widely divergent directions. See Williams, 84 F.3d at 590 (any similarities in the plot and sequence of events represented nothing more than random similarities scattered throughout the works).

b. Characters

An analysis of the characters in both works also reveal a lack of substantial similarity. MKR insists that Stephen, one of four main characters in Dawn of the Dead, and Frank, the main character in Dead Rising, are substantially similar. MKR is correct that both characters are male with short brown hair, wear leather jackets, and undertake activities connected to journalism. These similarities, however, do not suggest infringement, but rather elements of a stock character expected to be present in any number of stories. Other elements of both characters moreover reflect significant dissimilarity. For instance, Dead Rising completely revolves around Frank, a fairly cynical and athletic young freelance photographer who wants to report what is going on in the small town while Stephen is portrayed as a timid non-athletic middle aged television news helicopter pilot of equal prominence with the other three characters. Beyond some superficial, generic physical similarities of gender, hair color and wardrobe, therefore, nothing links one to the other.

Other characters of note, Brad in Dead Rising and Peter in Dawn of the Dead, are both tall athletic African-Americans who know how to handle weapons. Both exude confidence and have a cool head when surrounded by the imminent zombie danger. As with Stephen and Frank, however, those similarities do not develop from the stock to the distinctive. Peter is a SWAT member who is not developed beyond his expertise with weapons and sardonic demeanor while Brad is not developed beyond his part as a member of the Department of Homeland Security determined to rescue another particular character and depart the mall safely. Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930) (“[T]he less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for marking them too indistinctly.”).

Another group of characters present in each work are the zombies themselves. Dawn of the Dead has a number of distinctive zombies ranging from a Hare Krishna, an extremely overweight character, and a girl with a distinctive yellow and green striped shirt. Others are dressed in plaid shirts or are covered with gore and blood. By contrast, Dead Rising lacks any similar distinctive zombie characters. All appear to be stock elements with largely generic attire. While Dead Rising does sport some zombies in plaid and covered in blood, those attributes are too hazy to amount to substantial similarity.

Finally, there are dozens of other characters in Dead Rising that have no counterpart in Dawn of the Dead (Carlito, Isabela, Dr. Barnaby, the janitor, the psychopaths, and the other fifty survivors found in the mall). See Identity Arts, 2007 U.S. Dist. LEXIS 32060, 2007 WL 1149155, at *15 (“[P]laintiff cannot merely sweep aside the presence of so many other varied characters who appear in the differing spots, and whose attributes and demeanor bear no similarity with respect to one another.”).

c. Theme

Any similarity in the theme of the movie and the video game relates to the unprotectable idea of zombies in a mall. Once viewed beyond the presence of this general idea, any similarity in themes evaporates. Dawn of the Dead, according to MKR, involves a satirical social commentary on the excesses of consumerism, where zombies seek to enter the mall in a desperate search for the consumer goods that drove them while alive. Ironically, as the movie suggests, the survivors in turn are trapped in the mall with all the consumer goods they could ever want, but can only enjoy them in the restricted world of the shopping mall itself. Whatever a critic may opine as to Dawn of the Dead’s success in communicating such an anti-consumerism message, what is clear from a review of Dead Rising, contrary to MKR’s interpretation, is that it does not begin to try to duplicate such a message. To the extent that Dead Rising may be deemed to posses a theme, it is confined to the killing of zombies in the process of attempting to unlock the cause of the zombie infestation. The social commentary MKR draws from Dawn of the Dead, in other words, appears totally absent from the combat focus found in Dead Rising.

d. Dialogue

As to dialogue, MKR identifies only one instance of similarity in both works: the reference to “hell.” In the movie, in response to the zombie invasion Peter quietly states what comes to operate as the film’s tagline, “this, my friend, is hell.” In Dead Rising, Carlito, a character with no counterpart in Dawn of the Dead, ominously intones, “when there is no more room in hell, the dead will walk the earth.” One allegedly similar line from a movie and a video game is insufficient to support a claim of infringement. See Narell v. Freeman, 872 F.2d 907, 911 (9th Cir. 1989) (“Ordinary phrases are not entitled to copyright protection.”); Benjamin v. Walt Disney Co., No. CV 05-2280 GPS, 2007 U.S. Dist. LEXIS 91710, 2007 WL 1655783, at *5 (C.D. Cal. June 5, 2007) (insufficient dialogue for substantial similarity in the phrase “I have a plane to catch” uttered by the protagonist in each work to force the signing of divorce papers); Identity Arts, 2007 U.S. Dist. LEXIS 32060, 2007 WL 1149155, at *12, 13 (finding the statement “it’s coming from the audience” in allegedly infringing movie trailers insufficient to support a finding of substantial similarity).

e. Mood

The mood of Dawn of the Dead and Dead Rising is difficult to compare owing to the different media each occupies (a movie and an interactive video game).

[Footnote]
5 While it is difficult to analyze two different works contained in different media, it is equally difficult to decide how this difference helps one party over another.
[End Footnote]

See Idema, 162 F. Supp. 2d at 1185 (noting the difficulty in comparing the written word versus a movie). To the extent they can be compared, they are not substantially similar. The mood of Dawn of the Dead is dark, horrific, but somewhat comedic in featuring the main characters struggling to survive for months in the mall. The mood of Dead Rising, on the other hand, is one of adventure and mystery as Frank tries to uncover the secret behind the zombie infestation of the town. In short, Dawn of the Dead endeavors to create an atmosphere of suspense and anxiety while the video game focuses on action and competition.

[Footnote]
6 That is not to say that Dead Rising is devoid of comedic elements. As in Dawn of the Dead, the relentless zombies are confronted with various comedic weapons including various food products such as pies. The use of such devices, however, does not rise to the level of substantial similarity. See Olson v. Nat’l Broad. Co., 855 F.2d 1446, 1451 (9th Cir. 1988) (finding that the comic mood is common to the genre of action-adventure television series and movies and therefore did not demonstrate substantial similarity).
[End Footnote]

f. Setting

The setting of the movie and the video game likewise does not give rise to a finding of substantial similarity. While both works are set in a rural two-story mall with a helipad on top and a gun shop and music playing inside, these locales represent scenes a faire that flow from the unprotectable idea of zombies in a mall. At the same time, each mall is distinct from the other in that the one in Dawn of the Dead is relatively small with a major department store and an ice rink, while the other in Dead Rising is a modern mega-mall without a major department store or ice rink, but with separate theme-based sections including a roller coaster, theater, outdoor park, supermarket, and underground tunnel system. Indeed, both malls contain escalators and a fountain, but these are features found in most malls, and cannot support a finding of substantial similarity.

g. Pace

An examination of the pace of Dawn of the Dead and Dead Rising reveals no substantial similarity. Dawn of the Dead takes place over many months as evidenced by the evolution of the character Francine, not visibly pregnant at the outset but close to giving birth by the end of the events in the mall. Dead Rising, by contrast, takes places entirely over a three day period. The pace of the works is similar in some respects, but overall is substantially not so. The beginning of Dawn of the Dead quickly moves from Philadelphia to the helicopter landing at the mall. Once in the mall, the pace varies from slow to fast depending on whether the main characters are resting peacefully in their walled-off security room or are roaming out into the mall battling zombies. The pace in Dead Rising is one of constant, fast-paced action depending on the player’s preference. If the player follows the game storyline cues, a fast pace ensues to facilitate completion of the game with the rescue of all survivors within the three day window. By the same token, if the player chooses not to follow the storyline cues, then the pace slackens and the player wanders the mall and confronts zombies. Even if this is viewed as presenting some superficial similarity, “pace, without more, does not create an issue of overall substantial similarity between the works.” Williams, 84 F.3d at 590.

h. Total Concept and Feel

The final factor, the total concept and feel, differs to a large extent between the movie and the video game. Dawn of the Dead is a dark comedy about survivors of a global zombie infestation desperately trying to survive for months in a rural mall by clearing it of all zombies to create a safe environment in which to live in peace while the zombie hoards encompass the world outside. In contrast, Dead Rising is an adventure/mystery story where the main character attempts to enter a quarantined area to uncover in three days why a small town is infested with insects that turn the dead into zombies. The total concept and feel of Dawn of the Dead is of a world under seige, while Dead Rising presents an environment to be conquered.

i. Metcalf Analysis

Finally, MKR argues that under Metcalf even if each factor viewed individually fails to demonstrate substantial similarity, the motion to dismiss must be denied because, taken as a whole, such a showing has been demonstrated. In Metcalf, plaintiff submitted his idea and script for a movie to defendants who rejected the project, but subsequently produced a television series dealing with similar issues. 294 F.3d at 1071-72. Both works involved overburdened county hospitals in the inner city of Los Angeles comprised mostly of African-American staff members. Id. at 1073. Both dealt with poverty and urban blight, and featured similar characters and plot developments. Id. The court found that the common elements and the totality of similarities raised a triable factual question of substantial similarity, even if those similarities, when considered individually, were unprotectable. Id. at 1074. That is, the cumulative weight of the similarities allowed plaintiffs to survive summary judgment. Id. Courts since Metcalf, however, have been reluctant to expand its concepts beyond the specific facts of that case. Zella, 529 F. Supp. 2d at 1138. Even were Metcalf to be applied here, the totality of the separate comparative factors do not amount to a finding of substantial similarity between the works at issue. MKR’s alleged similarities constitute nothing more than a string of disconnected facts and generic ideas which are not protected under copyright law. See id. at 1139 (finding that plaintiffs could not merely cobble together generic elements of the works to make a Metcalf argument).

j. MKR’s Intrinsic Argument

MKR makes much of the argument that those involved in the game industry perceive Dead Rising to be an obvious “rip-off” of Dawn of the Dead. While such anecdotal evidence may well be accurate, even to accept it at face value would be to beg the question. The ultimate issue on this motion is whether or not the allegedly infringing work implicates protectable elements under copyright law, regardless of whether or not it is, in fact, a “rip-off.” Moreover, to the extent that the argument eventually would become relevant, it would arise only in the application of the “intrinsic” test, the second prong of the copyright analysis. As MKR must first successfully pass through the extrinsic test, which as set forth above it does not accomplish, the perception in the marketplace that a work has been lifted, accurate or otherwise, simply does not come into play.

k. No Substantial Similarity as a Matter of Law

MKR’s proffered similarities upon inspection do not support a finding of substantial similarity. See Litchfield v. Spielberg, 736 F.2d 1352, 1356 (9th Cir. 1984) (determining that “random similarities scattered throughout the works” do not support a finding of substantial similarity). Works more comparable than Dawn of the Dead and Dead Rising have been found lacking substantial similarity as a matter of law. See, e.g., Williams, 84 F.3d at 583-87 (comparing children’s book about visit to a dinosaur zoo to the movie Jurassic Park); Walker, 784 F.2d at 46 (comparing the book “Fort Apache” and the film “Fort Apache: The Bronx”). Because leave to amend would be futile as the findings are based on the works themselves rather than on MKR’s pleadings, the infringement claim must therefore be dismissed with prejudice. Thomas, 2008 U.S. Dist. LEXIS 14643, 2008 WL 425647, at *6.

Repeating the allegations:

MKR pleads that Capcom seeks to capitalize on: (1) Romero’s name on a disclaimer; (2) the term “dead” in its title; (3) the zombie head design trademark on Dead Rising’s packaging; and (4) the “plaid boy” costume consisting of a blood stained, plaid shirt, and a zombie mask.

[Footnote]
8 This proposed source identifying element is not pled in MKR’s counterclaim, but is instead raised for the first time in its opposition. Even if this character were pled in MKR’s counterclaim, such use of a character within a visual work falls within the realm of copyright law, not trademark. See Comedy III Prods., Inc. v. New Line Cinema, 200 F.3d 593, 596 (9th Cir. 2000) (holding that use of character images not a trademark violation, but rather an issue under the dominion of copyright law). As discussed above, the use of zombies with plaid shirts in Dead Rising is not substantially similar to the plaid shirt zombies in Dawn of the Dead. The trademark claim based on the use of this character, therefore, is dismissed.
[End Footnote]

MKR sufficiently has pled source identifying elements, rather than the ideas and creative content that Dastar prohibits. These source identifying elements are what the Lanham Act is intended to protect despite Capcom’s arguments to the contrary.

[Footnote]
9 As MKR states in its opposition, it does not allege “reverse passing off.” Reverse passing off is defined as “removing or obliterating the original trademark without authorization before reselling goods produced by someone else.” Shaw v. Lindheim, 919 F.2d 1353, 1364 (9th Cir. 1990).
[End Footnote]

Continuing:

MKR next maintains that the titles, Dawn of the Dead and Dead Rising, are confusingly similar because both share the term “dead” and connote the same meaning of zombies awakening. Dead Rising could only interfere with MKR’s rights, however, if “the title has no artistic relevance to the underlying work whatsoever, or, if it has some artistic relevance, unless the title explicitly misleads as to the source or content of the work.” Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894, 902 (9th Cir. 2002) (quoting Rogers v. Grimaldi, 875 F.2d 994, 999 (2d Cir. 1989)). Under the first part of Mattel, MKR acknowledges that Dead Rising refers to zombies contained within the game. Opposition at 17. Under the second part, Dead Rising as a title must explicitly mislead as to the source of the work, which it simply does not [*41] do. Moreover, the shared use of one word and the idea of zombies awakening is not enough to sustain a charge of infringement because when a defendant uses less than the whole of a plaintiff’s mark, it must appear that the part taken identifies the owner’s product without the rest. Caron Corp. v. Ollendorff, 160 F.2d 444, 445 (2d Cir. 1947) (quoting Parfumerie Roger & Gallet v. M.C.M. Co., Inc., 24 F.2d 698, 699 (2d Cir. 1928)). MKR cannot demonstrate that “dead,” standing alone, identifies either the movie or the video game as a whole. Indeed, that common word is contained in countless movies and game products.

Finally, MKR maintains that the zombie head design trademark on Dead Rising’s packaging reflects Capcom’s intent to traffic on the fame of Dawn of the Dead. Comparing the packaging of Dawn of the Dead with Dead Rising, however, reveals no use of the zombie head design. The cover of Dawn of the Dead contains half a zombie head looking over a horizon. The half of the head that appears is white colored, cartoonish, bald, with a portion of the face covered in blood. By contrast, the front and back of the Dead Rising box contains a picture of the character Frank attacking numerous zombies. Of the many zombies displayed, there is one bald zombie on the bottom left corner of the front cover, but the full head and torso of the zombie is portrayed without any blood, and most of the head is shadowed. The zombie presented also appears to be much more lifelike than the half of the zombie head on the cover of Dawn of the Dead. This comparison, therefore, reveals that there simply is no basis for claiming that the zombie head design itself appears anywhere on the packaging of Dead Rising. Accordingly, MKR’s Lanham Act counterclaim must be dismissed with prejudice.

And concluding:

Accordingly, Capcom’s motion to dismiss is granted. MKR’s counterclaims for copyright infringement and trademark infringement, violation of Cal. Bus. & Prof. Code § 17200, and violation of California common law trademark infringement, unfair competition, misappropriation, and dilution are dismissed with prejudice. IT IS SO ORDERED.

If you want more about this case, there are a bunch of blogs that already wrote about it (google “MKR Capcom”) and here is an hour long podcast from Oct 2008 on Law of the Geek explaining this same case

Also, this case is only a few years old but it is already been distinguished as to whether State claims for unfair competition are preempted by the Lanham Act. See Keep A Breast Foundation v. The Seven Group

And in 2010, Kalyn Ruth Meyer published “DOCTRINE OF THE DEAD: HOW CAPCOM V. MKR EXPOSES THE DECREASING FIT BETWEEN MODERN COPYRIGHT INFRINGEMENT ANALYSIS AND MODERN VIDEO GAMES” in Chicago-Kent Journal of Intellectual Property – 9 Chi.-Kent J. Intell. Prop. 132 - Meyer discusses the difficulties of comparing non-linear narratives in video games with more traditional literary styles and argues that “Capcom v. MKR exposed flaws in the current test even as the court applied the extrinsic factors to a relatively linear game with a large amount of sandbox gameplay” – she writes:

Video games are evolving in both technology and purpose. The industry is shifting its attention from games that operate as interactive, scripted films toward games that provide a dynamic environment for a player’s autonomous adventure. This trend toward nonlinear open-world and sandbox gameplay presents unique challenges in applying the copyright infringement analysis to video games.

The extrinsic test of copyright infringement serves as an objective prerequisite to comparing two works’ expressive components. Despite the fact-specific and audience-specific nature of the expression inquiry, the results of an extrinsic analysis may foreclose this evaluation. Thus, the points of comparison guiding courts through the extrinsic analysis must accurately assess the works’ objective similarities. The extrinsic factors that so effectively evaluate literary works are unfit for nonlinear, open-world video games. This paper demonstrates how continued use of the extrinsic factors in evaluating this medium will distort the copyright infringement analysis by providing an inaccurate gauge of the works’ underlying similarities.

Meyer concludes:

many copyright infringement cases involving open-world and sandbox-style video games will not make it to this point (trying issues of fact) under the extrinsic analysis used in Capcom v. MKR. If courts continue to evaluate the increasingly popular, nonlinear game style within the framework designed for literary and dramatic works, they will continue to measure probative similarity with an inaccurate gauge.

Finally, two questions:
1) does this case put ‘zombies in a mall’ into the public domain?
2) are there other video games that take their ‘scenes a faire’ from a movie?

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