Mel Smith, the author of the zombie comic series Dead Ahead, has survived AMC’s first attack against his lawsuit claiming a copyright infringement by Fear the Walking Dead. On Tuesday, a federal judge denied the cable network’s motion to dismiss.
Smith filed his complaint last July and alleges that the second season of Fear the Walking Dead derives from his own work. He alleges that both have the identical premise of a ragtag group of individuals thrown together by a zombie apocalypse fleeing to the Pacific Ocean on a boat.
Interestingly, it appears that AMC isn’t denying it had access to Smith’s work. In his complaint, the plaintiff says his agent was David Alpert, also the business manager and business partner of Walking Dead author Robert Kirkman. Alpert is an executive producer on Fear the Walking Dead and a co-defendant in the lawsuit.
AMC aimed to dismiss the lawsuit by arguing that once generic elements from the zombie genre were stripped from consideration, there wasn’t enough substantial similarity in any protectable elements. Given that there has been many zombie movies and television shows since the 1968 George Romero film The Night of the Living Dead, that strategy may have seemed most wise.
But U.S. District Court Judge Lucy Koh characterizes AMC’s motion as basically a bid for fact-finding at this early stage.
“Here, what Defendants essentially seek is summary judgment because they stray beyond the four corners of the complaint and into factual disputes over the similarities and differences between Dead Ahead and Fear the Walking Dead, including whether certain elements of Dead Ahead are protectable under copyright law,” she writes. “Moreover, AMC Defendants’ request for judicial notice that certain concepts are generic further demonstrates that Defendants’ motions are essentially motions for summary judgment.”
Koh acknowledges that some courts have opined that some concepts are generic on motions to dismiss, but without the aid of expert testimony, she writes that she “respectfully disagrees with these non-binding cases,” adding, “All these cases offer little justification for why certain elements are generic or scenes-a-faire, and thus unprotectable under copyright law.”
Thanks to this decision, unless the case settles, expect to see some exploration of the zombie genre, including what’s original versus just standard tropes free to be exploited by anyone.
As for Alpert, he must face a claim of violating fiduciary duty with the judge also rejecting AMC’s bid to toss the allegation of aiding and abetting this breach of duty.
Koh writes that Smith “has alleged that the AMC Defendants knew of Alpert’s agency relationship with Plaintiff, and despite that, provided Alpert with funding and support to produce Fear the Walking Dead. As the court held in Minnesota Life Ins. Co. v. Philpot, providing funding is enough to show ‘substantial assistance or encouragement’ in aiding and abetting the breach of fiduciary duty. Therefore, AMC Defendants’ argument that there are no allegations that AMC defendants provided ‘substantial assistance or encouragement’ to Alpert is unavailing.”