In honor of Halloween, this week I thought I would (if you will forgive the pun) resurrect a case from 2008: that of Dawn of the Dead vs. Dead Rising.
Video game or horror movie aficionados may remember that this one was a pretty big deal when it occurred. But for those who are not in the know, here is a recap.
Dawn of the Dead is a 1978 film by George Romero that is widely hailed as one of the best horror movies of all time. Dead Rising is a 2006 video game created by Capcom that spawned multiple successful sequels.
Both are, as the titles imply, about zombies. But the similarities do not end there, which is why Capcom filed a Petition for a Declaratory Judgment to have the court determine whether or not copyright infringement had taken place, arguing that the differences were greater than the similarities between the film and the video game. MKR Group responded by alleging copyright infringement.
MKR Group had to establish that the elements of Dawn of the Dead were substantially similar to the video game Dead Rising. What kinds of similarities did they claim?
Similarities between Dawn of the Dead and Dead Rising
An incomplete list includes elements such as:
- Both involve fighting zombies in shopping malls.
- Both have journalists as the hero. Both of which have short brown hair and leather jackets.
- Both use helicopters to bring their characters to the zombie-plagued mall in question.
- Both feature the National Guard patrolling the area.
- Both feature a lot of zombies in plaid shirts.
If those similarities were not enough, there is also the fact that Capcom sought to enter into a licensing agreement with MKR Group, Ltd regarding Dawn of the Dead film elements before making the game.
However, when that failed, they went ahead and made it anyway, even taking the extraordinary step of including this disclaimer with the game: “THIS GAME WAS NOT DEVELOPED, APPROVED OR LICENSED BY THE OWNERS OF GEORGE AV. ROMERO’S DAWN OF THE DEAD TM.”
Sounds like a slam dunk for MKR Group, right? Not so fast…
Why the Judge Dismissed MKR Group’s Suit against Capcom
Ultimately, it boils down to this statement: “…the few similarities MKR has alleged are driven by the wholly unprotectable concept of humans battling zombies in a mall during a zombie outbreak.” (Italics mine.)
Of course, there are more specifics that the judge cites, including the fact that dialogue and mood diverge significantly, that the helicopter is used at different points of each story, and that despite their matching jobs, the hero journalists are quite different (one young, one middle aged; personalities that contrast). He even went so far as to call MKR’s similarities a “string of disconnected facts.”
The point: it is quite difficult to prove these types of cases. The similarities between the two properties must outweigh the differences, which means a deep dive into the nuts and bolts of the respective properties.
That being said, the judge’s ruling in this case was a bit of a surprise. In fact, someone else could have easily ruled the other way. This is important to remember when creating a work with potentially significant similarities to one that already exists.
If you are at all concerned about the possibility of being accused of copyright infringement and ending up in court, it may be worth considering a licensing agreement with the owner of the original work. And, of course, there is always the option to create your own original work….