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 \u201cJack\u2019s Law,\u201d but the title was later changed to \u201cVengeance.\u201d Medina and Flex registered the film \u201cwith the applicable copyright offices.\u201d<\/p>\n
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In November 2005, Medina and Flex provided a \u201crough cut\u201d of the movie to Robert Rodriguez, a film producer. Rodriguez allegedly examined the script of the movie and the \u201crough cut\u201d 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 \u201cin a few small markets\u201d in 2006.<\/p>\n
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 \u201cMachete.\u201d Medina and ITN Flix alleged that Machete \u201ccopied much of their original films\u201d and \u201cwas substantially similar to their films.\u201d The similarities alleged by them are that (1) \u201cMachete is about a federal officer who takes \u2018vengeance\u2019 on the bad man who killed his wife and daughter. He takes vengeance by searching out the villains through information obtained on the streets.\u201d (2) \u201cThe final scene in Machete is between a priest and a bad man, and duplicates the scene that was filmed for Vengeance in 2005.\u201d (3) \u201cThe lead actor in Machete was Danny Trejo and was the first movie released with Trejo as the lead.\u201d<\/p>\n
Machete was released in 2010. In about October 2013, a sequel entitled \u201cMachete Kills\u201d was produced and released by Rodriguez. The Complaint alleges that \u201cDefendants have actively promoted, displayed, and broadcast the \u2018Machete\u2019 and \u2018Machete Kills\u2019 movies to the public\u201d by \u201cshowing these movies publicly on their respective networks, all to the detriment of Plaintiffs, thereby infringing on Plaintiffs\u2019 copyrights.\u201d<\/p>\n
Medina and Flex alleged that they own a valid copyright to the movie \u201cVengeance\u201d (previously titled \u201cJack\u2019s Law\u201d). 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\u2019 film and (b) there are \u201cprobative similarities\u201d between Plaintiffs\u2019 film and the Machete films.<\/p>\n
The only allegation in the complaint expressly stating \u201caccess\u201d is that the \u201cproducers of the \u2018Machete\u2019 and \u2018Machete Kills\u2019 films had access to the copyrighted works.\u201d However, the \u201cproducers\u201d 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 \u2013 Univision Holdings, Univision Salt Lake City, Univision Communications, and El Rey Network \u2013 produced Machete or Machete Kills. Without alleging that the Broadcasters had access to Plaintiffs\u2019 film, Plaintiffs cannot establish that the Broadcasters engaged in \u201ccopying.\u201d<\/p>\n
The Complaint did allege that Rodriguez obtained access to the Plaintiffs\u2019 film in \u201clate 2005.\u201d But Rodriguez was not a defendant. Thus, there is a significant question whether Rodriguez\u2019s alleged access in 2005 provides an adequate link for purposes of copyright access to El Rey Network or any of the other Broadcasters.<\/p>\n
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 \u201cUnivision\u201d \u201cas the bridge between English-speaking and non-English speaking Hispanics.\u201d Thus, there is an indirect inference that Rodriguez could have communicated his knowledge of Vengeance to the Broadcasters.<\/p>\n
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 \u201cre-shot and re-edited and otherwise modified\u201d 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 \u201cthe facts have shown or the Complaint has alleged facts showing that in virtually every detail, the two works are identical.\u201d<\/p>\n
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\u2019 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\u2019 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.<\/p>\n
Plaintiffs argued that the movies have the same vigilante \u201cplotline\u201d and have \u201cnearly indistinguishable characters.\u201d 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 \u201ccopied\u201d or \u201cduplicated\u201d their film. The Complaint must contain factual allegations about protected expressions, not merely conclusions that the general plot ideas or characters have been duplicated.<\/p>\n
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 \u201cnecessarily follows\u201d 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 \u201cstriking similarity\u201d between the films. Plaintiffs also have not established direct or third party access. Accordingly, the court decided<\/a> that the Complaint failed to state a claim for copyright infringement.<\/p>\n","protected":false},"excerpt":{"rendered":" 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 \u201cJack\u2019s Law,\u201d but the title was later changed to \u201cVengeance.\u201d Medina and Flex<\/p>\n