I just finished Dead Rising tonight. Actually, I finished the story about two weeks ago, but I got the final achievement tonight. After I wrapped the playthrough and finally took one of the best zombie games I’ve ever played out of my 360, I checked up on what Kotaku had posted today and found this little gem: Dead Rising could soon be in hot water over the game’s similarity to George Romero’s Dawn of the Dead, essential viewing for any zombie fan. It seems the copyright holders are finally deciding that they don’t like that Capcom copied their “zombies in a mall premise” and are likely getting ready to file a lawsuit.
I can not overstate how retarded any potential lawsuit would be. It’s not like Capcom was ever claiming this game was related to Romero’s classic, and the game even bears a disclaimer stating it’s not related to it in any form. Capcom never actively marketed it as a worthy successor to the movie, so claiming that it’s a knockoff made just for a quick buck would be irresponsible.
That means the only thing that the MKR Group can stand on is that both the game and the movie have the same premise of zombies in a mall, with survivors hanging out in the security room. Sure, it’s undeniable that the setting is exactly the same. But as anyone who has played the game will agree, the tone of the game is completely different than the movie. In Dawn of the Dead, the few survivors act with extreme caution in anything they do and try to avoid conflict as much as possible. Dead Rising, in contrast, allows the player to take great pleasure in killing as many zombies as they can with whatever weapons they can find, running about with reckless abandon as you take no permanent penalty for having a zombie chew on your shoulder. Futhermore, while Dawn of the Dead is a social commentary on consumerism in America, Dead Rising’s plot is more concerned with an international view of America as an resource-consuming entity, mixed with ridicule for common American stereotypes. (The game’s psychopaths, or bosses, include a goth pyromaniac, a corrupt cop, a shell-shocked Vietnam veteran, a redneck, and a trio of snipers who brag about their rights granted by the Second Amendment.)
Needless to say, the MKR Group doesn’t have a leg to stand on. There’s no way to copyright a premise or setting. If there were, then we’d (thankfully) have a lot fewer WWII games and movies.
About the Author: Necros is a community blogger at Destructoid.com and the maintainer of the unofficial Destructoid IRCartel. He is also a regular on the bi-weekly community-oriented videogame podcast “Failcast.”
I’m not familiar enough with either Dawn of the Dead or Dead Rising to make a conclusive statement on the validity of a copyright claim, but I’m a little confused by your analysis.
Your first statement concerning Capcom’s failure to claim a use and its disclaimer seems a bit irrelevant to a copyright claim analysis. While stating a disclaimer would help to protect Capcom from Unfair Competition and trademark disputes, I’m not sure if it’s something a court would rely on for a copyright matter.
Let’s look at the elements of infringement: Access and Substantial similarity.
We know there’s access– Capcom gave that one away with the disclaimer.
Is there a substantial similarity? Ordinary observer test: “whether the accused work is so similar to the plaintiff’s work that an ordinary reasonable person would conclude that the defendant unlawfully appropriated the plaintiff’s protectible expression by taking material of substance and value.” Atari, Inc. v. North American Philips Consumer Elecs. Corp. 672 F.2d 607, 614 (7th Cir. 1982).
First: Is there a protectible expression at issue? We know that ideas aren’t protectible, but a setting, plot, storyline, and theme are all typically considered protectible. So the protectible elements here are arguably: the characters, the mall setting, the types of stores used, the plot, the storyline, the dialogue/script, etc.
Next: Are the two works so similar that an ordinary reasonable person (objective standard) would conclude that defended unlawfully appropriated plaintiff’s protectible expression? A lot of courts rely on the total look and feel approach, so those would likely take your tone argument into account. The ninth circuit uses an extrinsic test: which breaks down both works to their constituent elements, determines which elements of both are protectible and which elements of both are not protectible, and then compare the similarity of the protectible elements. Swirsky v. Carey, 376 F.3d 841, 845 (9th Cir. 2004). So under a 9th circuit analysis, at least, Capcom may need to assert an affirmative defense.
Finally, Was the material used (i.e., the mall setting) of substantial value to the protected work? The use must be substantial in relation to the plainiff’s work as a whole. According to the Supreme Court, a substantial taking doesn’t require a large percentage of the work to be used, but that the defendant took the “heart” of the protected work. Harper & Row Publishers, Inc. v. Nation Enter. 471 U.S. 539, 565-66 (1985). MKR would probably argue that the mall setting was the “heart” of the film, the thing that distinguished Dawn of the Dead from the Zombie genre. Capcom may try to argue scenes a faire, but unless other films/zombie genre games/literature have used shopping malls between Dawn of the Dead and Dead rising, it’d be a bad leg to stand on.
So there is a potential claim here, and it will probably settle, because Capcom doesn’t want to be the one to set bad precedent.
Also worth mentioning that the themes you stated– “Consumerism in America” versus “International view of American Consumerism,” would probably seem very similar to the point of appropriation to an objective reasonable person who isn’t looking for distinctions. Plus, it’s a question of fact, which requires a trial. But I do think there is a valid claim that would survive a 12(b)(6).
this game is the worst game I have ever played for 8 hours straight . people just die out of no were . the ugly yellow and green masks make me mad