USCA Second Circuit, November 8, 2012 (unpublished opinion)

Click here for a copy of the full decision.

  • Circuit court affirms summary judgment in favor of producers and creators of motion picture Alien v. Predator, finding that plaintiff (the author of screenplay The Lost Continent) failed to prove copyright infringement (no evidence of access and no substantial similarity), and while finding that the Copyright Act did not preempt the breach of implied contract claim, the court found no evidence of the existence of a contract.

Plaintiff James Muller, the author and owner of the copyright to a script for a film entitled The Lost Continent (TLC), brought suit for copyright infringement and breach of implied contract against defendant Paul W. S. Anderson, Davis Entertainment, and Twentieth Century Fox Film Corporation, producers and creators of the film Alien vs. Predator (AVP), alleging that he provided persons and entities associated with defendants with copies of TLC and that defendants copied or improperly appropriated TLC in creating AVP. The Second Circuit affirmed the district court’s grant of summary judgment in favor of defendants.

In TLC, a group of scientists, soldiers, and government officials with undisclosed ties to the Freemasons discovers the lost city of Atlantis beneath Antarctica. There, they find a large pyramid containing a magic crystal, and the group is attacked by various inanimate creatures that have come to life. In AVP, a group of scientists and soldiers discovers a pyramid off the coast of Antarctica containing an Alien queen, a well-known beast from the Alien film series. The group then finds itself in the middle of a battle between the Aliens and creatures from the Predator film series.

The district court granted summary judgment in favor of defendant on plaintiff’s copyright infringement claim, finding that plaintiff had not adduced evidence either that defendants had access to TLC and that TLC and AVP exhibited similarities probative of copying, or that AVP and TLC were so strikingly similar as to preclude the possibility of independent creation. The Second Circuit affirmed, finding that no reasonable jury could find actual copying or improper appropriation.

The district court also granted summary judgment on plaintiff’s claim for breach of an implied contract, finding that the Copyright Act preempted the contract claim. The Second Circuit disagreed, finding that the Copyright Act does not preempt claims alleging that defendants breached a contract containing a promise to pay. According to the court, no difference exists for preemption purposes between a breach of contract claim alleging an express agreement to pay and one alleging that the parties had an implied agreement to pay and that defendant used plaintiff’s ideas without remuneration. Although the Second Circuit disagreed with the district court’s reasoning, it affirmed the judgment in favor of defendants, finding that plaintiff adduced no evidence of the existence of an implied agreement between him and defendants.