A comic book author’s copyright suit against the makers of the TV zombie series Fear the Walking Dead can shamble on.

AMC Networks Inc. couldn’t convince a federal court to toss Melvin William Smith’s suit alleging the Walking Dead prequel rips off various aspects of his comic Dead Ahead.

The U.S. District Court for the Northern District of California ruled Jan. 31 that it’s too early in the case to fully analyze similarities between the works, or to evaluate AMC’s argument that Smith sought to protect generic plot elements. The court also allowed breach of fiduciary duty claims to move ahead in addition to infringement claims.

The ruling shows the difficulty of getting a copyright suit tossed during the motion-to-dismiss stage. AMC cited some district cases that were thrown out at that early stage. But the court declined to follow “these non-binding cases, which offer little analysis.” It instead cited federal appeals court precedent that the relevant similarity test “requires analytical dissection of a work and expert testimony.”

The original The Walking Dead comic series, created by writer Robert Kirkman and artist Tony Moore, debuted in 2003. The success of the TV show, which premiered in 2010, led AMC to ask Kirkman and Smith’s agent at the time to create a spinoff, which premiered in 2015. The spinoff cribbed plot, characters, dialogue, themes, setting, mood and pace from Smith’s 2008-2010 comic series Dead Ahead, according to the complaint.

Smith’s lawsuit names his former agent David Alpert and Kirkman, both credited as executive producers of The Walking Dead and its prequel.

AMC argued Smith didn’t show that the network gave Smith’s agent “substantial assistance or encouragement"in his alleged breach of duty to serve Smith’s interests. But AMC’s alleged collaboration and funding of Alpert’s and Kirkman’s show was enough to allege contribution to the breach, the court ruled.

Copyright Claims Afloat

The parties agreed that AMC had access to Smith’s copyrighted work, leaving the court to decide whether the show is substantially similar to copyrightable elements of the comic. The court said AMC’s motion to dismiss was effectively a premature request for summary judgment because it strayed “into factual disputes.”

Smith’s lawsuit laid out several similarities, such as plots involving a “ragtag group” of eight fleeing a zombie apocalypse in Southern California by similarly-sized boats to Mexico. Both used plots about avoiding military vessels, encountering sea-adapted zombies and pirates, and seeking refuge in an abandoned cruise ship or a resort hotel.

Smith also claimed the two works shared themes, mood and pace, as well as characters, such as a male educator protagonist thrust into a leadership role, a mysterious red-headed rifle-sporting female, and a bilingual Central American with a military background.

AMC provided more than a dozen books, films, websites and Wikipedia entries to show how frequently similarities that Smith named appeared elsewhere, the opinion noted.

Scenes that flow naturally from basic, unprotected plot concepts can’t result in infringement, the court said. Finding infringement requires an analysis that filters and disregards unprotected elements and assesses remaining similarities. The court found “the present record is insufficient” to do so.

Judge Lucy H. Koh wrote the decision.

Phillips, Erlewine, Given & Carlin LLP represent Smith. Davis Wright Tremaine LLP and Gibson Dunn & Crutcher LLP represent AMC.

Smith v. AMC Networks, Inc., 2019 BL 32475, N.D. Cal., No. 18-3803, 1/31/19