Circuit Finds 'Overall Feel' Different in Copyright Case

, New York Law Journal

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A unanimous panel of the U.S. Court of Appeals for the Second Circuit panel on Monday affirmed the dismissal of a copyright lawsuit filed by a screenwriter against Sylvester Stallone, Lions Gate Films and Nu Image Films over the 2010 action film "The Expendables."

The plaintiff, Marcus Webb, alleged that Stallone, who co-wrote and directed the film, ripped off a screenplay by Webb called "The Cordoba Caper." Both scripts tell the story of a team of mercenaries dispatched to depose a Latin American dictator named General Garza. Stallone's film, which was a box office hit, featured a star-studded cast including Jason Statham, Let Li, Bruce Willis and Arnold Schwarzenegger.

Southern District Judge Jed Rakoff (See Profile) dismissed the case in December 2012, finding that Webb had not provided evidence that the makers of "The Expendables" actually read or copied Webb's screenplay.

The Second Circuit panel affirmed on different grounds, finding that while "The Expendables" and "The Cordoba Caper" had superficial similarities, the "total concept and, in particular, the overall feel" of the scripts were very different.

While "The Expendables" was "a gunfire-riddled 'pure action' flick," featuring a soundtrack of "classic rock songs with heavy guitar," the panel wrote, Webb's script is "a trickery-based true caper."

Webb's screenplay is further distinguished from Stallone's 2010 blockbuster by its "sensitive and human characters" and "female figures who are independent and capable," the panel ruled.

Webb is represented by David Kohane, a member of Cole, Schotz, Meisel, Forman, & Leonard, and David Gold, an associate of that firm.

The defendants are represented by Tom Ferber and James Janowitz of Pryor Cashman and by Benjamin Akley, an associate at that firm.

Judges Robert Katzmann (See Profile), Richard Wesley (See Profile) and Raymond Lohier (See Profile) sat on the panel. The case is Webb v. Stallone, 13-324-cv.

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