Intellectual Property Law

Capcom Seeks Declaration over 'Dead Rising'

By Chris Bennett, Tudor Carsten, Michael R. Coburn, Sarah Dale-Harris, Pablo Guzman, Danielle (Dani) Lemon, Chris Metcalfe and David Spratley

Fans of zombie movies will undoubtedly recognize this old chestnut: a protagonist, barricaded in a curiously weapon-rich building, surrounded by zombies, must use any and all means available to stay alive. Sound familiar? Could be George A. Romero's 1979 opus 'Dawn of the Dead' (or its 2004 remake). It could be Peter Jackson's 1992 gorefest 'Dead Alive', or 2004's quietly brilliant 'Shaun of the Dead'. In fact, it could be any number of re-tellings of that classic 'man vs. the undead' narrative.

It could also be Capcom's 2006 award winning game, 'Dead Rising'. The game, in which a hero is stranded for three days in a mall infested with zombies, shares a number of similarities with Romero's 'Dawn of the Dead'. Too many similarities, charges The MKR Group, holder of the IP rights to 'Dawn of the Dead'. Even prior to the release of 'Dead Rising', MKR approached Capcom and accused the game of infringing MKR's copyright and trademark. The parties were unable to resolve the dispute and as a precaution, Capcom included a disclaimer on the front of its packaging stating: 'this game was not developed, approved or licensed by the owners or creators of George A. Romero's Dawn of the Dead.'

On February 12, 2008 Capcom filed for a declaratory judgment to prevent the MKR Group and New Line Cinema from asserting their intellectual property rights. In papers filed in the California District Court, Capcom claims that any similarities between the game and the movie are 'based wholly on the unprotectible idea of humans battling zombies in a shopping mall.' Capcom goes on to say that there are 'literally dozens of other video games featuring a protagonist battling hordes of flesh-eating zombies', and neither MKR's copyright in the film, nor any mark, is infringed by the game. Capcom further asserts that because of the disclaimer that accompanied the game, there was no confusion among consumers between the film and the game.

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Full post as published by Video Game Law Blog on February 21, 2008 (boomark / email).