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California Federal Judge Refuses, Among Other Things, to Drop Fiduciary Breach Claim Against AMC Networks over Fear the Walking Dead TV Series

The U.S. District Court for the Northern District of California found a claim for breach of fiduciary duty can continue against AMC in a lawsuit that also alleges the Fear the Walking Dead TV show infringes on the copyright of comic book creator Melvin Smith. Smith v. AMC Networks Inc., 18-CV-03803. Smith claims the zombie-themed TV series on AMC Networks infringes on the copyright for his comic book Dead Ahead, about “zombies on the high seas.” Smith's agent David Alpert had become co-executive producer of the TV series. First, allowing Smith's copyright infringement claim to move forward, District Judge Lucy H. Koh noted: “Given that Defendants' motions [to dismiss] are 12(b)(6) motions, there is no full record to review or any expert testimony upon which the Court may rely.” District Judge Koh then denied AMC's request for her to take judicial notice of “generic elements of action-adventure, thriller, and horror films and television series, including those involving invasions or outbreaks of some sort and those that take place at sea.” The district judge stated: “AMC Defendants reference more than a dozen books, films, Wikipedia articles, and websites, none of which are mentioned in [Smith's complaint].” She added: “In essence, what AMC Defendants ask is that the Court take judicial notice of the aforementioned concepts based purely on AMC Defendants' representation that the underlying works, of which the Court is not asked to take judicial notice, show that the above concepts are generic. … [T]he Court finds that whether the above concepts are generic is subject to reasonable dispute ….” Finally, Smith also alleges Alpert “violated and continues to violate his fiduciary duty [as Smith's agent] by engaging in a pattern and practice of self-dealing.” In permitting this fiduciary breach claim to also proceed against the AMC defendants, Judge Kohl explained: “Plaintiff also alleges that AMC Defendants employee Dave Erickson 'worked closely and in concert with David Alpert and [series co-executive producer] Robert Kirkman in the developing, scripting, casting and production of FEAR THE WALKING DEAD ….” Moreover, 'as showrunner and a credited co-creator, Dave Erickson served as the primary creative contributor acting on behalf of the AMC Entities, in their collaboration in and funding of the development, scripting, casting, and production of FEAR THE WALKING DEAD.'”