Fans of zombie apocalypse movies, comics and television series could get an in-depth probe into the genre now that AMC has failed in its attempt to get a copyright lawsuit again Fear The Walking Dead dismissed.
“AMC Defendants’ request for judicial notice that certain concepts are generic further demonstrates that Defendants’ motions are essentially motions for summary judgment,” writes federal Judge Lucy Koh of the efforts of the cabler, TWD creator Robert Kirkman’s Skybound Productions, TWD and FearTWD EP Gale Anne Hurd’s Valhalla Entertainment and Kirkman business partner David Alpert to quash comic series creator Mel Smith’s claim that Season 2 of FearTWD was lifted from his zombies at sea Dead Ahead comic.
“Although some district courts have opined that some concepts are generic on motions to dismiss, and AMC Defendants point to such cases in their reply, this Court respectfully disagrees with these non-binding cases, which offer little analysis,” Judge Koh added (read it here).
That element of the January 31 order from Judge Koh sets the stage for further docket filings and a potential trial becoming a masterclass in what makes a zombie apocalypse story and what does or does not distinguish one such tale from others in the successful genre.
Furthermore, and perhaps more damning to AMC and the other defendants, the San Jose-based judge won’t allow the cabler to unlock itself from the originally June 2018 filed claims by Smith against his ex-agent and current TWD and FearTWD EP Alpert. Smith alleges that Alpert was the connecting track that saw “portions of that season’s 13 episodes …copied from plaintiff’s copyrighted literary work DEAD AHEAD.”
“AMC Defendants argue that Plaintiff has not adequately pleaded that AMC Defendants aided and abetted Alpert’s alleged breach of fiduciary duty to Plaintiff because AMC Defendants did not provide “substantial assistance or encouragement” to Alpert connected to the alleged breach,” says Judge Koh, who also presided in the same no-BS fashion over the multi-million dollar settled animation anti-poaching legal action against all the top studios a few years back.
Or put in the starkest terms: “The Court finds AMC Defendants’ argument unpersuasive.”
With the breach of fiduciary duty claims and accusations of self dealing by Alpert still in legal play, AMC looks likely to find itself fighting at least three big bucks suits over zombie apocalypse. As Frank Darabont and CAA’s nearly six-year long and more than $300 million battle with AMC over profit participation looks for a new justice in the NY Supreme Court and a 2020 trial, Smith’s case for wide ranging damages seems headed for a jury trial unless a settlement is negotiated by the parties, Then there is the now-CA-based ongoing suit that FearTWD co-creator Kirkman, Albert, Hurd and other TWD execs past and present initiated in the fall of 2017 against AMC also profits on the now nine-season top cable series.
AMC did not respond to request today for comment on Jude Koh’s decision.
Interestingly, among all the defendants in Smith’s case, FearTWD co-creator and former showrunner Dave Erickson is not named – which is odd in an argument about the roots of the second season of the show.
The Season 9 midseason opener of mothershow The Walking Dead will be available on AMC Premiere on February 3 for subscribers and return to the small screen on February 10. Renewed last year for a fifth season, Fear The Walking Dead is expected to be back this summer – well before any of this is going to trial, if it even gets there.
Melvin William Smith Jr is represented by lawyers from San Francisco’s Phillips, Erlewine, Given & Carlin LLP. AMC and many of the defendants have attorneys from LA firm Davis Wright Tremaine LLP on their side, while Kirkman, Alpert and their company are working with Santa Monica’s Grodsky & Olecki LLP