From 2004 to 2006, Gil Medina and ITN Flex llc. wrote and filmed a movie starring Danny Trejo as the lead actor. The film was originally entitled “Jack’s Law,” but the title was later changed to “Vengeance.” Medina and Flex registered the film “with the applicable copyright offices.”
In November 2005, Medina and Flex provided a “rough cut” of the movie to Robert Rodriguez, a film producer. Rodriguez allegedly examined the script of the movie and the “rough cut” but told the Medina and Flex he was not interested in producing the movie. After Rodriguez told Medina he was not interested, Medina and ITN Flix company continued to re-shoot and re-edit the film and it was eventually released “in a few small markets” in 2006.
Between 2007 and 2009, Rodriguez became interested in developing, producing, and directing a vigilante film franchise centered around Trejo in the lead role. In 2009, Trejo agreed to star in a film produced by Rodriguez entitled “Machete.” Medina and ITN Flix alleged that Machete “copied much of their original films” and “was substantially similar to their films.” The similarities alleged by them are that (1) “Machete is about a federal officer who takes ‘vengeance’ on the bad man who killed his wife and daughter. He takes vengeance by searching out the villains through information obtained on the streets.” (2) “The final scene in Machete is between a priest and a bad man, and duplicates the scene that was filmed for Vengeance in 2005.” (3) “The lead actor in Machete was Danny Trejo and was the first movie released with Trejo as the lead.”
Machete was released in 2010. In about October 2013, a sequel entitled “Machete Kills” was produced and released by Rodriguez. The Complaint alleges that “Defendants have actively promoted, displayed, and broadcast the ‘Machete’ and ‘Machete Kills’ movies to the public” by “showing these movies publicly on their respective networks, all to the detriment of Plaintiffs, thereby infringing on Plaintiffs’ copyrights.”
Medina and Flex alleged that they own a valid copyright to the movie “Vengeance” (previously titled “Jack’s Law”). The Broadcasters, named defendants in complaint, do not challenge this allegation. The Complaint does not allege direct copying. Thus, to establish the element of copying, the Complaint must contain sufficient allegations that (a) the Broadcasters had access to Plaintiffs’ film and (b) there are “probative similarities” between Plaintiffs’ film and the Machete films.
The only allegation in the complaint expressly stating “access” is that the “producers of the ‘Machete’ and ‘Machete Kills’ films had access to the copyrighted works.” However, the “producers” were not defendants. Thus, alleging that the producers had access does not establish that the Broadcasters had access. The Complaint did not allege that any of the Broadcasters – Univision Holdings, Univision Salt Lake City, Univision Communications, and El Rey Network – produced Machete or Machete Kills. Without alleging that the Broadcasters had access to Plaintiffs’ film, Plaintiffs cannot establish that the Broadcasters engaged in “copying.”
The Complaint did allege that Rodriguez obtained access to the Plaintiffs’ film in “late 2005.” But Rodriguez was not a defendant. Thus, there is a significant question whether Rodriguez’s alleged access in 2005 provides an adequate link for purposes of copyright access to El Rey Network or any of the other Broadcasters.
The Complaint did not specifically allege that the Broadcasters had access to Vengeance through third parties. The Complaint indirectly suggests third party access by alleging that Rodriguez had access to Vengeance in late 2005, and that Rodriguez is the founder and chairman of the El Rey Network. The Complaint also alleged that Rodriguez was used by “Univision” “as the bridge between English-speaking and non-English speaking Hispanics.” Thus, there is an indirect inference that Rodriguez could have communicated his knowledge of Vengeance to the Broadcasters.
However, even assuming these allegations are true, and assuming that Rodriguez communicated information about Vengeance to the Broadcasters, this would fail to establish third party access because, as Plaintiffs admit, Vengeance was “re-shot and re-edited and otherwise modified” after it was provided to Rodriguez in 2005. There is no allegation that Rodriguez was given more information about Vengeance after 2005. Thus, when Machete allegedly began to be made in 2007, Vengeance had evolved into a different work. Access cannot be inferred unless “the facts have shown or the Complaint has alleged facts showing that in virtually every detail, the two works are identical.”
Complaint did not allege that El Rey Network was involved in making or producing Machete. It only alleged that El Rey and the other Defendants broadcasted the film. Thus, even assuming the allegations in the Complaint are true, that Rodriguez had access to Plaintiffs’ film and that his access could be imputed to El Rey, this access is insignificant because there is no allegation that El Rey played any role in producing the Machete films. Thus, whatever third party access El Rey may have had to Plaintiffs’ film, it is ineffective to establish access that is relevant to copyright infringement. For these reasons, there are no sufficient allegations of third party access in complaint.
Plaintiffs argued that the movies have the same vigilante “plotline” and have “nearly indistinguishable characters.” But Plaintiffs have not identified particular expressions that are protectable. Plaintiffs have not alleged specific lines, costumes, scenery, or other expressions were duplicated. Instead, Plaintiffs relied on general conclusions that the Broadcasters have “copied” or “duplicated” their film. The Complaint must contain factual allegations about protected expressions, not merely conclusions that the general plot ideas or characters have been duplicated.
Plaintiffs sought protection for the alleged similarity between the two films, but the two films are of the same genre and have the same theme, which “necessarily follows” when films address the same topic. The key to copyright protection is whether there are protectable elements that have been copied. Because Plaintiffs have not alleged that any protectable elements of their film have been infringed, they have failed at the first step of the abstraction-filtration-comparison test and Plaintiffs have failed to establish access by showing “striking similarity” between the films. Plaintiffs also have not established direct or third party access. Accordingly, the court decided that the Complaint failed to state a claim for copyright infringement.