Last month, actor, director, and writer Sylvester Stallone was sued for copying a screenplay to create the 2010 film “The Expendables,” a movie about mercenaries hired to overthrow a South American dictator. Screenwriter Marcus Webb claimed in his complaint filed in the New York District Court in Manhattan that “The Expendables” is “strikingly similar” to his screenplay “The Cordoba Caper.” Webb appears to have a legitimate claim of infringement against Stallone, co-writer David Callahan and associated studios Millennium Films and Lion Gate Entertainment Corporation. The “Rocky” star and associated parties may have a tough legal battle ahead.

According to the Supreme Court in Feist Publications, Inc. v. Rural Telephone Service Company Inc., to prevail on a claim of infringement the plaintiff must prove: “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” Webb probably will not have a problem proving he has a valid copyright in his work “The Cordoba Caper”: the U.S. Copyright Office’s public catalog shows registration for both the dramatic motion picture screenplay and short story in 2008 and 2009 respectively. Thus Webb’s timely registration gives rise to a presumption that the copyright is valid, because under 17 U.S.C. §410(c), “In any judicial proceedings the certificate of registration . . . shall constitute prima facie evidence of the validity of the copyright.”

If this case does go to trial, the court will probably focus on the second element, copying of a constituent element of a work that is original. Under Laureyseens v. Idea Group Inc., actionable copying occurs when the defendant actually copied the copyrighted work and when the defendant improperly appropriated that copyrighted work for use in its own work. Regarding the first element, since direct evidence is seldom available, Webb’s attorney will present circumstantial evidence which includes whether the plaintiff had access to Webb’s work and whether “The Expendables” and “The Cordoba Caper” share similarities probative of copying.

Here is why this case will probably survive summary judgment and be as tough of a fight as Rocky fighting Drago in Rocky IV. First, it is reasonably possible that Stallone and associates had access to Webb’s screenplay. According to the complaint, Webb states that “from 2006 through 2009 [he] submitted the screenplay to numerous literary forums, and it was widely available for viewing and consideration by the motion picture industry.” “The Cordoba Caper” also was entered into and placed in several big motion picture contests, like the 2009 PAGE international screenwriting awards and the 2006 American Zoetrope Screenplay Contest, where many studios purchase screenplay rights.

Even if it cannot be proven that Stallone physically possessed one of the copies of Webb’s screenplay floating around, access can be inferred if the works are “strikingly similar.” As excerpts from the complaint explain (via Reuters and Opposing Views), the pieces are striking similar, referring to 22 similarities including: (1) the general plot of having a team of mercenaries hired by a female character to defeat a dictator in a small Latin American country, (2) the fictional villain being named “General Garza,” (3) the opening scene portraying a hostage rescued at sea, off a foreign coast, which has nothing to do with the main plot, and (4) large portions of the dialogue, including the main protagonist repeatedly defining missions as going “to hell and back.” Arguably some of these similarities can be described as “idea” which is not protected under copyright law, but the aggregation of all these similarities does make it appear that these two works are strikingly similar. Additionally, Webb made conscious choices and selections in his screenplay that are protectable elements. It is expression like this that leads me to believe Stallone may have an uphill battle trying to prove that “The Expendables” is an independent creation.

Not to be one sided, a legitimate argument can be made that the similarities between the two are merely elements taken from the public domain and are staples of action movies. I must admit that when I watched “The Expendables,” it appeared to be just another Stallone action movie, no different than Rambo, Cobra, or Demolition Man. However, the number of similarities between the “The Expendables” and “The Cordoba Caper” and what is similar make it a tough argument that Stallone had no contact with Webb’s work. But judge for yourself: does Stallone have a Rambo-esque fight in front of him or is “The Cordoba Caper” just another action script with little protectable substance?

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