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James Muller v. Twentieth Century Fox Film Corporation

March 30, 2011


The opinion of the court was delivered by: Chin, Circuit Judge


In 2004, defendant Twentieth Century Fox Corporation ("Fox") released the film AVP: Alien v. Predator (the "Film"). As its title suggested, the Film told the story of a battle between extraterrestrial creatures, the "Aliens" and the "Predators," from Fox's earlier hit movies, Alien and Predator --with humans caught between.

Some eight years earlier, plaintiff James Muller had written an original screenplay, The Lost Continent (the "Screenplay"), which told the story of a government-led expedition to the Antarctic to investigate a mysterious structure below the frozen surface, a secret plan by a group called the "Freemasons" to recover a powerful crystal from the ancient city of Atlantis, and attacks by stone gargoyles come-to-life.

In this case, Muller contends that Fox and defendants Paul W.S. Anderson and Davis Entertainment Company ("DEC"), sued herein as Davis Entertainment, Inc., copied the Screenplay when they wrote and produced the Film. Muller asserts claims for copyright infringement and breach of implied contract. Defendants move for summary judgment dismissing the amended complaint. Muller opposes the motion, and requests additional discovery pursuant to Fed. R. Civ. P. 56(f).

Defendants' motion is granted. I conclude, on the record before the Court, that no reasonable jury could find that defendants engaged in actual copying or that the Film and the Screenplay are substantially similar within the meaning of the copyright laws. Indeed, the copyright laws do not protect ideas but only particular expressions of ideas. Although the Screenplay and the Film are similar in some respects, the similarities relate only to unprotectible ideas, concepts, or abstractions. Moreover, the two works tell very different stories. Accordingly, the amended complaint is dismissed, and Muller's Rule 56(f) application is denied.


A. The Facts

The facts are drawn from the parties' affidavits, depositions, and exhibits, and the Court's summaries of the works below are based on the Court's review of the Screenplay and the Film.*fn1 Any conflicts in the evidence have been resolved in favor of Muller, the party opposing summary judgment.

1. The Screenplay

The Screenplay tells the story of the ancient, lost city of Atlantis, which was destroyed by a tidal wave thousands of years ago. Members of the Freemasons, including the President of the United States, consider themselves the lost city's descendants. Their goal is to find Atlantis, where they hope to recover a magical crystal that will give them the power to control the world. The Freemasons' search for Atlantis gains momentum when a government satellite detects a heat signal below Antarctica's surface. The satellite imagery reveals an underground pyramid surrounded by other structures resembling a city. The President, who realizes that the satellite has detected Atlantis, sends a team to investigate. The stated purpose of the expedition is to ensure that the signal's source does not pose a threat to national security. The actual purpose, unbeknownst to most members of the expedition team, is to retrieve the crystal for the Freemasons.

The Screenplay begins around 12,500 years ago with an exotic sea vessel creeping up a channel toward a hundred foot high metallic wall. As the ship approaches, a passageway materializes, allowing the vessel to pass through. On the other side is a city composed of giant metallic pyramid towers and skyscrapers.

The scene then shifts to the city's inhabitants who are gathering around a large pyramid in the city's center. They are waiting to hear from their leader, Jahbulon, who arrives at the pyramid shortly thereafter and tells the crowd "a new age is upon us." Moments later the city is wiped out by a tidal wave.

The Screenplay then switches to the present day, where Dr. Katherine Graham, an archeologist and professor at Princeton University, has just finished an unsuccessful three-year dig in Egypt and is returning to America. Frustrated by her futile excavation, Dr. Graham is ready to return to a routine semester.

At the same time, a government satellite detects what appears to be a city and a tunnel underneath the Antarctic. Upon learning of the finding, the President immediately sends two advisors, Bill Mitchell, a Freemason, and Dave Dillon, an agent from the National Security Agency (the "NSA"), on a visit to the Antarctic. After arriving at the tunnel's entrance, Mitchell and Dillon, whose submarine is too large to pass through, turn around and head back to Washington, D.C.

Back at the nation's capital, Mitchell visits Freemason leader James Volker and relays what he saw. Both men conclude that the tunnel must lead to Atlantis. Volker heads to the White House to meet with the President. The President authorizes a government-led expedition to Antarctica to investigate the satellite's findings, and assures Volker he will be part of the team.

Dillon meets with his NSA supervisor, Thomas McCardle, who assembles the expedition team. McCardle believes that the mission concerns matters of national security. Unaware of the President's hidden motives, McCardle assembles a top-notch team. He sends Dillon to Princeton to recruit Dr. Graham to be the team's research expert.

Although she is hesitant, Dr. Graham realizes that she has no choice. The next day she goes to NSA headquarters and learns the details of the mission. She joins McCardle and Dillon to discuss logistics. In addition to Dr. Graham, the team consists of Volker, five Navy SEALs, Pittman, Conrad, Harper, Motley, and Nugent, and their Captain, Roessler. Meanwhile, Volker and other members of the Freemasons convene in a dark room at an undisclosed location to discuss the expedition's hidden mission: retrieval of the crystal from Atlantis at all costs.

The expedition team travels to the Antarctic on the USS Chicago, a large submarine, which also contains the Sandshark, a smaller submarine designed to traverse through the tunnel. Upon arriving at the tunnel entrance, the team boards the Sandshark, which then maneuvers around the remains of a sunken vessel and other debris lodged inside the channel. The Sandshark emerges from the tunnel into a calm, giant bay. In the distance is a mysterious and ancient city. A large pyramid in the center looms over surrounding skyscrapers. The top of the pyramid casts a haunting luminescence, the heat source that the satellite detected earlier.

Upon arriving at the city's shoreline, the team disembarks from the Sandshark and heads cautiously toward the pyramid. They discover statues of gargoyles in a courtyard. A nearby inscription describes these creatures as the city's guardians. The team enters a temple in search of more clues about this mysterious city. Inside are images and inscriptions that Dr. Graham explains are ancient symbols still used by the Freemasons today. As Dr. Graham writes down her observations, the Navy SEALs leave the temple. Moments later, they head inside another building. One is mysteriously killed.

Upon finding the decapitated body, the surviving Navy SEALs immediately exit the building and run back toward the temple. They pass the courtyard where the gargoyle statues were just moments ago, only to find that the statues have vanished. The SEALs then return to the temple and rejoin the team.

That night, two of the gargoyles reappear inside the temple and attack Nugent and Pitman. Nugent survives, but Pitman is killed. Fearing that the gargoyles will come after them next, the remaining team members decide to retreat to the Sandshark.

Upon arriving at the shoreline they find their submarine mysteriously destroyed. As the team is trying to figure out what happened to the Sandshark, the gargoyles kill Harper and Nugent.

The surviving team members run toward the large pyramid in the center of the city. Upon entering the pyramid, the team comes across a room filled with thousands of Atlantean bodies all frozen in a cryogenic stasis. As the team's disbelief subsides, they see a crystal perched in the center of the room. Volker recognizes the crystal as the one the Freemasons want. The team's focus then shifts from the crystal to another alluring object in the room -- a large tomb flanked by four golden arches. Inside is Jahbulon, Atlantis's leader from the Screenplay's opening scene. When Volker sees the arches he proclaims "City of Golden Gates." Dr. Graham pulls Dillon aside and voices her skepticism about Volker, telling Dillon that Volker is probably a Freemason who joined the mission to advance his own hidden agenda.

Soon afterwards, Jahbulon reanimates and addresses the team in his native tongue, a language that only Volker understands. Volker tells Jahbulon about the Freemasons, explaining that after Jahbulon's city was destroyed thousands of years ago, a small group of survivors -- the Freemasons --compiled the secrets of Atlantis. For generations these secrets were protected and handed down by the secret society. Volker then identifies himself as a Freemason. Simultaneously, Dr. Graham shouts out her independent realization that Volker is a Freemason. Moments later, Jahbulon kills Dillon. In retaliation, Motley attempts to kill Jahbulon, but Volker smacks Motley's gun toward the ground. Motley is then killed by a gargoyle. During this fighting, Dr. Graham and Roessler escape from the pyramid.

Back inside the pyramid, Volker stabs and kills Jahbulon, and then seizes the crystal. Volker exits the pyramid and finds Dr. Graham and Roessler. The three head to the city's shore to wait for a rescue submarine to transport them back to the surface.

As they wait to be rescued, Volker explains that he killed Jahbulon and took the crystal to prevent the rebirth of Atlantis. Were the Atlantean Empire to rise again, Volker warns, it would enslave the world. Mitchell arrives in the rescue submarine. Volker quickly jumps in as Mitchell produces a gun and points it at Dr. Graham and Roessler, both of whom are still on the shore. Mitchell and Volker then reveal that they are Freemasons, and their goal during the expedition was to gain control of the crystal. They then toss an atomic bomb to Roessler, speed away into the tunnel, and return safely to the surface.

Dr. Graham and Roessler, now trapped in Atlantis, hustle back to the pyramid. Just before the atomic bomb goes off, Dr. Graham uses a telepathic power and causes an interdimensional portal to appear. She and Roessler run through the portal and end up in Egypt. They then fly back to the United States.

Upon their arrival in Washington, Dr. Graham and Roessler track down Volker and Mitchell. With the NSA's approval, Dr. Graham and Roessler pretend to strike a deal with the Freemasons, allowing Volker to hold on to what he thinks is the crystal, but which is in fact a bomb. Shortly after, Volker brings the "crystal" to the Freemasons. The bomb explodes, killing all the society's members other than the President. In the end, Dr. Graham and Roessler hold on to the real crystal and give a phony replica to the NSA.

Six months later, Dr. Graham, back at Princeton, has just completed a novel about her Antarctica adventure. She and Roessler are in love, and the crystal is hidden in plain sight --as an ornament on her desk.

2. The Film

a. Fox's Alien and Predator Franchises

Alien (1979), an academy-award winning film starring Sigourney Weaver as "Ripley," had a powerful impact on the science fiction genre. See Review of Alien, Rotten Tomatoes, (last visited Mar. 28, 2011). The "Alien" was a terrifying extraterrestrial creature that killed humans traveling in outer space. See id. The movie spawned three sequels, two prequels, novels, comic books, and video games. (See Tim Dirks, Review of Alien, http://www. (last visited Mar. 28, 2011); see also Anderson Decl. ¶ 3; Davis Decl. ¶¶ 5-6).*fn2 In fact, the Library of Congress in 2002 added Alien as one of twenty-five "culturally, historically or aesthetically" significant motion pictures to the National Film Registry. See Library of Congress Information Bulletin: Films Selected for the National Film Registry in 2002 by the Library of Congress (Jan. 2003),

Predator (1987), starring Arnold Schwarzenegger as Major Alan "Dutch" Schaefer, and its sequel, Predator 2 (1990), were also widely popular and led to related novels and comic books. (See Davis Decl. ¶¶ 4-6; see also Review of Predator, (last visited Mar. 28, 2011)). The "Predator" was a technologically advanced extraterrestrial creature that hunted humans on Earth. (See Davis Decl. at ¶ 4).

The respective successes of the Fox-owned Alien and Predator franchises set the foundation for a crossover series, Alien v. Predator. (See Anderson Dep. at 64:16-21; Davis Decl. ¶¶ 5-6). Indeed, in or around 1990, Fox licensed Aliens v. Predator, a comic book series that presented an epic battle between these two extraterrestrial creatures. (Tim Dirks, Review of Alien, (last visited Mar. 28, 2011); see also Anderson Decl. ¶ 4; Davis Decl. ¶ 6).

b. The Film

Fox released the Film for theatrical distribution in the United States in 2004. (Anderson Decl. ¶ 11).

The Film features a conflict between Aliens and Predators, the two species from the Alien and Predator movies. The plot is as follows: once a century, Predators descend from outer space and travel to an ancient pyramid below Antarctica that is inhabited by Aliens. Inside the pyramid, the two species engage in a vicious battle.

The Film opens to a dark void and everything is black. Light slowly illuminates what at first look like giant black spider legs. The image is deliberately reminiscent of the Alien Queen, one of the central characters in the Alien movie series. As the light grows, the audience realizes that the image is a satellite orbiting Earth. Suddenly, the satellite detects something on Earth and zooms in. The Film cuts to a receiving station in New Mexico. There, technicians view the satellite's transmission on a computer, which reveals a heat signal below an island near Antarctica. The satellite and the receiving station are owned by Weyland Industries and billionaire Charles Weyland. Upon learning about the satellite's signal, Weyland sets about assembling a team to accompany him on an expedition to investigate the finding.

The next scene is set in Nepal where Alexa Woods, the movie's protagonist, is climbing a frozen waterfall. As she is ascending the wall of ice, she receives a call from Maxwell Stafford, an employee of Weyland Industries. Stafford relays a message from Weyland asking Woods to meet him. When Woods reaches the top of the waterfall she finds Stafford waiting with a helicopter to take her to Weyland.

The setting switches to an excavation site in Mexico where archeologist Sebastian de Rosa is searching for ancient artifacts. After a particularly unsuccessful day, de Rosa, dejected, retreats to his tent where he finds Stafford ...

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