USDC N.D. California, October 20, 2008

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Plaintiffs developed a video game, Dead Rising, in which the main character battles zombies in a small town shopping mall and tries to escape by helicopter. Defendant owns the rights in the movie George A. Romero’s Dawn of the Dead, which involves four main characters battling zombies in a small town shopping mall and ends with two of the characters escaping by helicopter.

Plaintiff contacted defendant about licensing certain elements of Dawn of the Dead, but the parties did not come to an agreement. When plaintiffs distributed the video game, the package included the following disclaimer: “THIS GAME WAS NOT DEVELOPED, APPROVED OR LICENSED BY THE OWNERS OR CREATORS OF GEORGE A. ROMERO'S DAWN OF THE DEAD™”.

Plaintiff filed suit seeking a declaration that its video game does not infringe the copyright, trademark or other intellectual property rights in defendant’s movie. Defendant filed counterclaims for, among other things, copyright and trademark infringement. The court granted plaintiffs’ motion to dismiss all the counterclaims.

Regarding the copyright counterclaim, the court held that the works are not substantially similar. “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 . . . . 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.”

Regarding the trademark infringement claim, defendant argued that plaintiff was trying to capitalize on: (1) Romero's name on a disclaimer; (2) the term “dead” in its title; and (3) the zombie head design trademark on Dead Rising's packaging. The court dismissed these claims and held that plaintiffs’ use of the title of defendant’s movie in a disclaimer on the video game packaging is a nominative fair use; the titles of the two works are not confusingly similar even though they both contain the word “dead”; and the depiction of zombies on the video game packaging does not resemble defendant’s trademarked zombie head. The court also dismissed the state law counterclaims as preempted by the Copyright Act.