The US Court of Appeals for the Second Circuit has affirmed the order of a federal district court granting summary judgment for the defendants, including Sylvester Stallone, in a copyright infringement claim related to The Expendables movie.
Marcus Webb is a corporate communications professional and an amateur screenwriter who wrote a screenplay in 2006 called The Cordoba Caper. The plot involved an elite team of American mercenaries who are hired to defeat a Latin American dictator named General Garza.
Professional screenwriter David Callaham (Doom, Horsemen) had a “blind” deal with Warner Brothers, and in late 2003 or early 2004 he suggested to the studio that he write a script about American mercenaries taking on a foreign dictator. He sent Warner the first draft of his script, entitled Barrow, in 2005.
In 2008, Stallone told his agents that he wanted to do an action ensemble film. He read the Barrow script, which he assumed came through his agents. He then began writing his own script, eventually called The Expendables.
Although Stallone said that he set Barrow aside and didn’t “use one word of it” in his own script, the Writer’s Guild later awarded Callaham a “story by” credit and a joint “screenplay by” credit.
The film version of The Expendables script earned $274 million worldwide on an estimated budget of $80 million and has spawned one sequel so far, with more in the works.
After the film version of The Expendables was released in 2010, Webb sued Stallone, Callaham, and the various entertainment companies involved in the production including Lions Gate Films, alleging copyright infringement.
In 2012, the US District Court for the Southern District of New York granted Stallone’s motion for summary judgment.
To establish copyright infringement, a plaintiff must prove:
- Ownership of a valid copyright, and
- Copying of the constituent elements of the work that are original.
The second element has two requirements:
- Actual copying, and
- Improper appropriation.
Copying may be shown by direct evidence or by indirect evidence, including access to the copyrighted work, similarities between the works that are probative of copying, and expert testimony.
The defendants contended that Webb could not establish copying because:
- Barrow was written before Cordoba,
- Webb could not show that Stallone had access to Cordoba when he wrote The Expendables, and
- There were no similarities between the two scripts sufficient to prove copying.
Webb claimed that Stallone had access to his work on the basis that Webb had submitted his script to eight screenplay contests that employ staff and judges with contacts in the movie industry. However, Webb introduced no evidence that anyone who worked for Stallone had any connection with the contests.
The court concluded that no reasonable juror could conclude that the two scripts were so similar as to preclude the possibility of independent creation.
On appeal, the Second Circuit affirmed the dismissal on the grounds that the two works were not substantially similar. According to the court, The Expendables was a “gunfire-riddled ‘pure action’ flick,” while Cordoba was a “trickery-based true caper.”
The judge seemed to like the Cordoba script better, noting that it had
…sensitive and human characters, female figures who are independent and capable, and imagery that includes Mayan villages, horseback riding through the Andes Mountains, and Native American ceremonial costumes, food, and music.