13-324-cv
Webb v. Stallone, et al.

                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed on or
after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1
and this court’s Local Rule 32.1.1. When citing a summary order in a document filed with this
court, a party must cite either the Federal Appendix or an electronic database (with the notation
“summary order”). A party citing a summary order must serve a copy of it on any party not
represented by counsel.

        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, at 40 Foley Square, in the City of New York, on
the 3rd day of February, two thousand fourteen.

Present:    ROBERT A. KATZMANN,
                  Chief Judge,
            RICHARD C. WESLEY,
            RAYMOND J. LOHIER, JR.,
                  Circuit Judges.
____________________________________________________________

MARCUS WEBB,

               Plaintiff-Appellant,

               - v. -                                               No. 13-324-cv

SYLVESTER STALLONE, MILLENNIUM FILMS,
NU IMAGE FILMS, LIONS GATE FILMS, INC.,
LIONS GATE HOME ENTERTAINMENT, INC.
ALTA VISTA PRODUCTIONS, INC., ALTA
VISTA PRODUCTIONS, LLC, and DOUBLE LIFE
PRODUCTIONS, INC.,

               Defendants-Appellees,

DAVID CALLAHAM and LIONS GATE ENTERTAINMENT CORPORATION,

            Defendants.
____________________________________________________________



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For Plaintiff-Appellant:               DAVID M. KOHANE (David. S. Gold, on the brief), Cole,
                                       Schotz, Meisel, Forman, & Leonard, P.A. LLP, New York,
                                       NY.

For Defendants-Appellees:              TOM J. FERBER (James Janowitz and Benjamin S. Akley, on
                                       the brief) Pryor Cashman LLP, New York, NY.




       Appeal from the United States District Court for the Southern District of New York

(Rakoff, J.).

       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

and DECREED that the judgment of the district court be and hereby is AFFIRMED.

       Plaintiff-Appellant Marcus Webb appeals from the judgment entered on December 27,

2012, by the United States District Court for the Southern District of New York (Rakoff, J.),

granting summary judgment to Defendants-Appellees Sylvester Stallone, Millennium Films, Nu

Image Films, Lions Gate Films, Inc., Lions Gate Home Entertainment, Inc., Alta Vista

Productions, Inc., Alta Vista Productions, LLC, and Double Life Productions, Inc.

(“Defendants”). At issue is whether Webb failed to demonstrate a genuine dispute as to any

material fact regarding whether Defendants, in creating the movie The Expendables

(“Expendables”), copied Webb‟s screenplay, The Cordoba Caper (“Cordoba”). We assume the

parties‟ familiarity with the underlying facts, the procedural history of this case, and the issues

presented for review.

       To survive a motion for summary judgment in a copyright infringement case, the plaintiff

must present evidence that shows “(i) ownership of a valid copyright; and (ii) unauthorized

copying of the copyrighted work.” Jorgensen v. Epic/Sony Records, 351 F.3d 46, 51 (2d Cir.

2003). “To satisfy the second element of an infringement claim . . . a plaintiff must show both

that his work was „actually copied‟ and that the portion copied amounts to an „improper or

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unlawful appropriation.‟” Id. (quoting Castle Rock Entm’t, Inc. v. Carol Publ’g Grp., Inc., 150

F.3d 132, 137 (2d Cir. 1998)). “Actual copying may be established by direct or indirect

evidence. Because direct evidence of copying is seldom available, a plaintiff may establish

copying circumstantially,” Jorgensen, 351 F.3d at 51 (internal quotation marks omitted), through

“proof of access to the copyrighted work, similarities that are probative of copying between the

works, and expert testimony,” Boisson v. Banian, Ltd., 273 F.3d 262, 267 (2d Cir. 2001) (internal

quotation marks omitted). We have described these likenesses that serve as indicia of copying as

“probative” or “striking” similarity. Jorgensen, 351 F.3d at 51, 56.

       In addition to actual copying, a plaintiff must also show improper appropriation. Id. at

51. This requirement recognizes that “not all copying results in copyright infringement, even if

the plaintiff has a valid copyright.” Boisson, 273 F.3d at 268. In order to show improper

appropriation, “[p]laintiffs must also demonstrate „substantial similarity‟ between [the accused

work] and the protectible elements of [the infringed work].” Id. (emphasis omitted) (quoting

Streetwise Maps, Inc. v. Van Dam, Inc., 159 F.3d 739, 747 (2d Cir. 1998)).

       The district court granted the defendants‟ motion for summary judgment after concluding

that Webb failed to establish a genuine dispute as to any material fact regarding whether

defendants actually copied his work. We affirm the judgment below, but do so on alternate

grounds, making no ruling as to the correctness of the district court‟s basis for dismissal. See,

e.g., Adirondack Transit Lines, Inc. v. United Transp. Union, Local 1582, 305 F.3d 82, 88 (2d

Cir. 2002). We affirm the judgment on the basis that defendants did not improperly appropriate

Webb‟s work because Expendables and Cordoba are not substantially similar.

       In determining whether works are substantially similar within the meaning of copyright

law, “we are principally guided „by comparing the contested design‟s total concept and overall



                                                 3
feel with that of the allegedly infringed work.‟” Peter F. Gaito Architecture, LLC v. Simone Dev.

Corp., 602 F.3d 57, 66 (2d Cir. 2010) (quoting Tufenkian Import/Export Ventures, Inc. v.

Einstein Moomjy, Inc., 338 F.3d 127, 133 (2d Cir. 2003) (some internal quotation marks

omitted)). This is so because

               the defendant may infringe on the plaintiff‟s work not only through
               literal copying of a portion of it, but also by parroting properties
               that are apparent only when numerous aesthetic decisions
               embodied in the plaintiff‟s work of art—the excerpting, modifying,
               and arranging of [unprotectible components] . . . —are considered
               in relation to one another.

Tufenkian Import/Export Ventures, Inc., 338 F.3d at 134. In addition to considering the total

concept and feel, we also “examine the similarities in such aspects as the . . . theme, characters,

plot, sequence, pace, and setting of the [screenplay] and the [film].” Williams v. Crichton, 84

F.3d 581, 588 (2d Cir. 1996).

       The total concept and, in particular, the overall feel, of the two works here are quite

distinct. As the district court observed, Expendables, a gunfire-riddled “pure action” flick, is

very different from Cordoba, a trickery-based true caper. Sp. App‟x 18. The 1980s-era action

scenes that permeate Expendables are a defining aspect of its exposition of the mercenary story,

which materializes through such elements as explosions, gunfire, and imagery including skulls,

tattoos, and prominently displayed muscles. In keeping with that tone, its soundtrack is

comprised of classic rock songs with heavy guitar. Cordoba, by contrast, does not feel like a

macho rogue military mission. Instead, it is a tale of a cunning heist with 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. Even if the works share some common elements, the manners in

which they express the stories feel dissimilar on the whole. Therefore, notwithstanding the

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similarities between the works, we find that no reasonable juror could conclude that Cordoba

and Expendables are substantially similar sufficient to prove unlawful appropriation. See Walker

v. Time Life Films, Inc., 784 F.2d 44, 52 (2d Cir. 1986) (declining to decide the issue of actual

copying because no substantial similarity exists between the two works).

       We have considered Webb‟s remaining arguments and find they are without merit.

Accordingly, the judgment of the district court hereby is AFFIRMED.

                                              FOR THE COURT:
                                              CATHERINE O‟HAGAN WOLFE, CLERK




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