Messiah of Evil is not related to Night of the Living Dead
In the previous ZombieLaw post, I discussed a copyright claim brought by the owners of the 1978 movie “Dawn of the Dead”. This same movie was also subject of a 1978 case in which a restraining order was sought against the movie “Messiah of Evil” having been renamed “Return of the Living Dead”.
Dawn Associates et al. v. Links et al.
No. 78 C 3585
United States District Court for the Northern District of Illinois, Eastern Division
203 U.S.P.Q. (BNA) 831
Decided – September 28, 1978
This matter is before the Court on plaintiffs’ Motion for Temporary Restraining Order and Motion for Preliminary Injunction. Plaintiffs’ Verified Complaint alleges violations of 15 U.S.C. § 1125(a), 17 U.S.C. §§ 501 et seq. and state and common law claims of unfair competition and infringement by defendants. Plaintiffs seek injunctive and monetary relief. Jurisdiction of the Court is invoked pursuant to 15 U.S.C. § 1121 and 28 U.S.C. §§ 1338(a) and (b).
With a few minor exceptions, the parties are not in disagreement as to the facts involved in this case. Rather, the parties’ dispute centers in the legal significance of these facts.
The facts are:
Plaintiff Romero (“Romero”) is the co-author of the screenplay and director of a motion picture entitled “Night of the Living Dead.” This film was released in 1968. Plaintiffs allege that this film has become associated by the public with Romero as its source. No other ownership rights in the film or screenplay are asserted by plaintiffs.
Romero has authored a new screenply which has been made into a film entitled “Dawn of the Dead.” Romero has also co-authored a novelization of the screenplay with the same title. Both the film and novel are allegedly scheduled for release later this year.
Plaintiff Dawn Associates is the owner of copyright registrations for the screenplay covering “Dawn of the Dead” and for advertisements for that film (plaintiff’ Verified Complaint, Exhibits A, B and C and attachments to Affidavit of Robert Elliott). Both the screenplay and the advertisements contain the phrase “When there is no room in hell… the dead will walk the earth.” Plaintiffs content that they have expended approximately $800,000.00 in production and promotion of this film. Promotion of the film allegedly began in January, 1978 and has continued to the present.
Plaintiffs allege that defendants’ advertisement and distribution of a motion picture originally entitled “Messiah of Evil”, now re-titled “Return of the Living Dead” constitutes false designation of origin and false description and representation of goods or service in commerce. Plaintiffs also contend that these same acts amount to unfair competition and trademark and copyright infringement. Plaintiffs assert that defendants’ actions have allowed them to profit unfairly and have jeopardized the success of plaintiffs’ planned released and the associated costs so far incurred.
Specifically, plaintiffs allege that defendants have:
(1) represented their film as a sequel to “Night of the Living Dead”, which it is not;
(2) used promotional materials for their film which include the phrase “When there is no room in hell… the dead will walk the earth”;
(3) used promotional materials for their film which include stylized lettering and photographic scenes from the film “Night of the Living Dead” which are identical to promotional material used for the film and which do not appear in defendants’ film; and
(4) used promotional material for their film which includes the phrase “All New” and “A Horror Classic.”
Plaintiffs assert that the cumulative effect of defendants’ acts is to indicate that plaintiff are somehow associated with defendants’ film.
Defendants argue that plaintiffs’ rights in film titles extend only to “Dawn of the Dead” and not to “Night of the Living Dead.” Defendants claim that their film title is in no way similar to “Dawn of the Dead” and thus no likelihood of confusion is shown. Defendants further assert that these plaintiffs can show no secondary meaning in “Night of the Living Dead” because the term “living dead” is both generic (as descriptive of a ghoul or zombie) and has been employed so often in titles of subsequent literary and motion picture works that it is part of the public domain. This Court does not agree.
Plaintiffs allege and defendants do not dispute that plaintiffs “have the sole right to release a movie based upon or utilizing rights existing in the “Night of the Living Dead’ movie.” (plaintiffs’ Verified Complaint, P123). Further, as discussed previously, standing to assert violations of Section 1125(a) exists in “any person who believes that he is or is likely to be damaged by the use of any such false description or representation.”
Even assuming the phrase “living dead” is generic and thus not able to be protected as a trademark, plaintiffs’ allegations against defendants are based on claims of unfair competition and not trademark infringement. This Court also is not persuaded by defendants’ contentions that repeated subsequent use of the phrase in literary and motion picture titles has made it part of the public domain. Again, assuming that to be true, it is defendants’ use of the phrase in addition to and in conjunction with its other acts of unfair competition and infringement that necessitate relief being given to plaintiffs for the alleged palming off.
The Court finds that,
Plaintiffs have adequately established that both “Night of the Living Dead” and “Dawn of the Dead” have achieved a secondary meaning with Romero as their source.
Therefore, the Court grants the restraining order in favor of Romero and “Dawn of the Dead” and against the marketing of “Messiah of Evil” as “Return of the Living Dead”.
Currently, the 1973 movie “Messiah of Evil” is available for free streaming at the Internet Archive. Wikipedia says of that movie:
Messiah of Evil (later also shown under the title Dead People) is a film made in 1973 by Willard Huyck and Gloria Katz, the husband and wife team behind the film version of Howard the Duck as well as the screenplay for American Graffiti.
In 1985, the movie “Return of the Living Dead” was released and spawned a series of “Living Dead” movies. Of these Wikipedia says:
The series came about as a dispute between John A. Russo and George A. Romero over how to handle sequels to their 1968 film, Night of the Living Dead. The two reached a settlement wherein Romero’s sequels would be referred to as the Dead movies, and Russo’s sequels would bear the suffix Living Dead.
Oddly, none of these Wikipedia pages seem to make any reference to this Court case against “Messiah of Evil” or that “Messiah of Evil” was ever marketed as “Return of the Living Dead”.
Also odd, I can’t seem to find a publicly available copy of this Court decision. It can be found on Lexis at: 1978 U.S. Dist. LEXIS 15245