The U.S. Court of Appeals for the Second Circuit upheld an order granting summary judgment on copyright and breach of contract claims against Alien vs. Predator film (AVP) creators, concluding that the alleged similarities between the plaintiffs’ screenplay and the film in issue were insufficient to create factual issues from which a reasonable juror could find actual copying or improper appropriation.  Muller v. Anderson, et al., Case No. 11-1694 (2d Cir., November 8, 2004). 

Appellant James Muller brought suit alleging that the defendants—Paul W.S. Anderson, Davis Entertainment and Twentieth Century Fox Film Corporation made illegal use of his script for The Lost Continent  (TLC) in their film AVP.  Muller alleged that he sent his script for TLC to various persons or entities associated with defendants and that the defendants subsequently copied elements of his script in AVP. 

The 2d Circuit, in affirming summary judgment, concluded that the two works are very different—the only real similarity being that they both involved a battle and discovery of a pyramid in the Antarctic.  On one hand, TLC tells the tale of a group of scientists, soldiers and government officials who venture via submarine to a hidden space beneath Antarctica where they find a large pyramid that hold a powerful magic crystal.  The team is subsequently attacked by various inanimate or frozen creatures that come to life.  AVP, on the other hand is the story of the battle between two well-known monsters of science fiction, the Aliens and the Predators, that also happens to take place on an island off Antarctica where a mysterious pyramid is found. 

The district court found, and the 2d Circuit agreed, that Muller failed to adduce facts from which a reasonable jury could find actual copying or improper appropriation, the two elements Muller had to prove to prevail on his copyright claim. 

The Court also explained that although a claim of implied breach of contract would not be preempted by the copyright claims, Muller nonetheless failed to present triable issues of fact on his breach of contract claims.  He offered no evidence of any mutual assent, an element necessary to his claim, and in fact conceded that “[n]o material terms of a contract to pay for ideas were ever communicated, either expressly or by implication between plaintiff and any of the defendants.”