On January 31, 2019, U.S. District Judge Lucy H. Koh of California ruled that AMC could not avoid a copyright infringement lawsuit that alleged defendants stole a zombie-comic creators’ characters, dialogue and plot for their series “Fear the Walking Dead”; a spinoff of AMC’s hit-show “Walking Dead.”

Judge Koh explained that she didn’t yet have enough evidence to determine whether or not AMC’s “Fear the Walking Dead” is “substantially similar” to plaintiff Mel Smith’s “Dead Ahead” comic series, so she couldn’t grant AMC’s bid to dismiss the case. “In sum, based on the record before the court, the court cannot conduct the analysis to separate the unprotectable elements from the protectable elements in ‘Dead Ahead.’”

Smith sued AMC in June of 2018 for copyright infringement. In an amended complaint filed in October of 2018, Smith alleged his former agent David Alpert, and “Walking Dead” producer Robert Kirkman, conspired with AMC to steal elements of “Dead Ahead” for a spinoff series that eventually became “Fear the Walking Dead.”

Smith’s complaint alleges “a ragtag group of individuals thrown together by circumstance [who] escape a zombie apocalypse from Southern California by fleeing to the Pacific Ocean on board a boat heading south towards Mexico,” make the alleged similarities between the two zombie-themed works “no coincidence.” Additionally, both works introduce “four men and four women,” a “male educator” as the protagonist, and both works deal with themes of “life versus death,” “the nature of survival” and “the resilience of the human spirit.”

AMC responded in November of 2018 by filing a motion to dismiss the case, calling Smith’s suit a “misguided attempt to assert ownership over the unprotectable concept of ‘zombies on the high seas.’” AMC stated Smith’s claims “grossly mischaracterize and exaggerate elements of both works,” like “characterizing a fishing-boat captain [in ‘Dead Ahead’] as an ‘educator’ in a comparison with a character from the [TV series] that is a high-school English teacher…Beyond these mischaracterizations, the alleged similarities consist entirely of unprotectable generic concepts found in numerous works, and, regardless, are expressed in significantly different ways in the works.”

Judge Koh wrote in her January 31st’s order, “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 nonbinding cases, which offer little analysis.”

Commentary: This is a rare victory for creative professionals who routinely see their work stolen in Hollywood.

Smith is represented by David M. Given and M. Jake Feaver of Phillips Erlewine Given & Carlin LLP.

AMC is represented by Alonzo Wickers IV, Nicolas A. Jampol ad Megan Lollar of Davis Wright Tremaine LLP.

Alpert and Kirkman are represented by Allen B. Grodsky, Courtney L. Puritsky and Tim B. Henderson of Grodsky & Olecki LLP.

The case is Smith v. AMC Networks Inc. et al, case number 5:18-cv-03803, in the U.S. District Court for the Northern District of California.

* Lowe & Associates (“The Firm”) is a boutique entertainment and business litigation firm located in Beverly Hills, California. The Firm has extensive experience handling cases involving entertainment law, having provided top quality legal services to its clients since 1991. The Firm is recognized in multiple publications for its many achievements and high ethical standards, including Martindale-Hubbell and Super Lawyers.

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