Result in Zorro Copyright Case is Music to Playwright’s Ears (Mostly)
Playwright Robert Cabell must be singing the refrain from a Meatloaf classic because he won two out of three issues on summary judgment in a copyright infringement case over his musical based on the character Zorro. As more and more works from the early 20th century fall into the public domain, the Zorro litigation offers a case study for screenwriters and playwrights seeking to use those works without fear of trampling others’ rights.
Who Owns Copyright in the Zorro Character and Story?
Zorro was originally created and developed in several works written by Johnston McCulley between 1919 and 1922. McCulley’s stories were adapted into a silent movie in 1920. These works now reside in the public domain.
However, in 1949, McCulley assigned all worldwide rights to the character to Zorro Productions Inc., which in turn licensed those rights to a number of Hollywood companies for use in Zorro-related works.
In 1996, Cabell created the musical “Z –The Musical of Zorro,” and approached ZPI about producing the musical. After talks broke down, Cabell told ZPI that he would continue the project without a license and “under the rights of public domain.” ZPI responded that any attempt to produce the musical without a license would result in “an immediate lawsuit.”
What Started the Zorro Copyright Infringement Case?
Following the failed talks, Cabell claimed that ZPI purposefully sabotaged his efforts to bring the musical to fruition by threatening lawsuits against a potential Broadway production and an international agent Cabell hired to shop the musical. In addition, ZPI licensed Zorro to author Isabelle Allende, which resulted in a 2005 novel about a young Zorro; a 2008 ZPI-produced musical followed shortly thereafter.
Cabell filed a copyright infringement suit in March 2013 against Allende and ZPI, claiming that the novel and musical infringed his musical. Importantly, he also filed a declaratory judgment action seeking a ruling that his musical did not infringe on any of ZPI’s rights.
How Did the Court Rule on Summary Judgment?
The parties filed competing summary judgment motions; Cabell moved for summary judgment based on his declaratory judgment claim, and ZPI cross-moved for summary judgment on Cabell’s infringement claims.
Cabell won a clear victory on his motion. The court agreed with Cabell’s assertion that his musical consisted of elements from the public domain and thus did not and could not infringe on ZPI’s intellectual property. ZPI did not challenge this argument in its opposition, which the court deemed an abandonment of its previous position that Cabell infringed its copyrights. The court also rejected ZPI’s argument that there was no case or controversy because it had not filed an infringement lawsuit against Cabell, reasoning that ZPI’s continued threats over the years created enough of a controversy to warrant declaratory relief.
Cabell also avoided summary judgment on one of the arguments in ZPI’s motion when the court found that a triable issue of fact existed regarding substantial similarity between the competing musicals. The court found similarities in setting, characters, and plot roles, and notably pointed specifically to the fact that ZPI’s musical used the same narrative device of a group of gypsies telling the story of Zorro as utilized in Cabell’s work.
Cabell did not fair as well on ZPI’s motion that sought to knock out his copyright infringement claim regarding the Zorro novel. Copyright infringement requires proof that (1) the plaintiff owns a valid copyright, and (2) that copying took place. ZPI did not dispute ownership because Cabell had valid copyright registrations. However, it disputed that copying took place, and the court found that Cabell had not met his elevated burden of demonstrating striking similarity between his musical and the novel.
Cabell’s burden of proof was elevated because he could not prove access, which is a necessary element for circumstantially proving copying. His evidence did not establish that Allende had access to his musical, but at the same time, the “evidence does not completely preclude the possibility that Allende also had exchanges with [ZPI] which could have given her access to the substance of Plaintiff’s works.” Thus, Cabell needed to prove a striking similarity between the works rather than the lower standard of substantial similarity.
The court found that the novel’s plot was “markedly different” from Cabell’s script. The novel focused on Zorro’s childhood, while Cabell’s story began with Zorro as an adult already established in his double life. Other differences settings, theme, pace, mood and tone led the court to conclude that ZPI deserved summary judgment and dismissal of Cabell’s copyright infringement claims against the novel.
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