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Universal Pictures might have thought that comic book author Steven John Busti‘s lawsuit over the 2011 film Cowboys & Aliens was frivolous, but the studio still spent more than $186,000 on lawyers defending it.
Busti sued in Texas federal court, claiming that a 2006 graphic novel about aliens crash-landing in the Wild West infringed his 1995 story, titled Cowboys & Aliens. The plaintiff asserted that the movie was derivative of the graphic novel, and thus, another infringement of his work.
In late August, U.S. District Judge Sam Sparks dismissed the lawsuit. His ruling didn’t dwell on the movie — the judge said he was “spared the necessity of watching Cowboys & Aliens more than once” — but rejected the copyright claim because the graphic novel wasn’t “strikingly similar” to Busti’s comic.
Now comes an arguably closer call as the judge has to decide whether Universal should be allowed to recover the $186,000 paid to attorneys at Haynes & Boone, who say they spent 544 hours on the case at a $250-$400 per-hour rate.
In a motion for attorneys’ fees, the defendants (including Platinum Studios) point to the judge’s decision that there was “no fact issue as to factual copying,” “no evidence of access,” “no showing of striking similarity” and “overwhelming, conclusive evidence of independent creation.” Busti was also warned by defendants that his claims were barred by the statute of limitations and that he failed to state the basic elements of a claim.
In response, Busti points to the judge’s findings of a number of similar elements shared by both works, which didn’t rise to copyright infringement, but what he says wasn’t a claim “frivolous or objectively unreasonable.” (Busti also appealed the judge’s order on Monday to the 5th Circuit.)
You be the judge. Here’s the court’s ruling, which starts out with a Johnny Cash lyric with aliens added.
In other entertainment law news:
- It’s not uncommon in the Oscars race for a film’s historical accuracy to become an issue. That might not be fair, but something worth watching is how crew members of the ship of Capt. Richard Phillip, taken captive by Somali pirates in 2009, react to the motion picture about the ordeal. The film stars Tom Hanks and will be released on Friday. Nine of the 20 crew members have been involved in a three-year-old lawsuit that alleges their lives were put in danger “knowingly, intentionally and willfully” by the ship’s owner. And now their lawyer has begun to attack the film. “To make him into a hero for driving this boat and these men into pirate-infested waters, that’s the real injustice here,” Brian Beckcom told ABC News. “The movie tells a highly fictionalized version of what actually happened.”
We recently covered the Supreme Court agreeing to review a copyright lawsuit against MGM over Raging Bull. Some other cases weren’t as lucky making the cut. Among the ones that the high court has denied cert on is a ruling against Stephen Slesinger Inc. over Disney’s rights to “Winnie-the-Pooh”and a ruling that confirmed Lionsgate’s victory against a music label that alleged the film 50/50 infringed a trademark.
- Casey Kasem‘s family is in court over control of the 81-year-old radio icon’s health care. Kasem’s children assert that their stepmom won’t allow them access to their father, who is battling Parkinson’s disease, and have now filed papers in LA Superior Court seeking a conservatorship. “My worst fear is that there’s neglect and isolation going on,” says his 41-year-old daughter Kerri. The elder Kasem and his wife are reported to live at a $42 million estate.
- A New York judge has refused to extend First Amendment protection to the live exhibition of mixed martial arts. Zuffa, UFC’s majority owner, sued over a New York ban, alleging that “fighters express themselves in every aspect of the live performance — from the entrances they stage and the walkout music they select, to the clothes they wear, to the way they conduct themselves inside the arena and towards their opponent.” The judge’s response? Yes, but “Plaintiffs have not demonstrated a ‘great likelihood’ that viewers will understand that message.” Here’s the full opinion, which also addresses fears that a broadly written law would also prohibit New York bar owners who hold MMA-related events and local websites who covered MMA.
- Don’t expect Warner Bros. to weigh in on the issue of what intellectual property rights are enjoyed by animals. (See our article here on the issue.) In April, the studio was sued by the owner of Keyboard Cat who alleged that a computer game called Scribblenauts Unlimited infringed the feline’s rights by using an image without permission. The case has now been privately settled.
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