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Aliens

Aliens

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Published by April Petersen
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Published by: April Petersen on Oct 08, 2013
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08/01/2014

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FLED
IN
THE
UNITEDSTATES
DISTRICT
COURT2013
AUG
30
$j'j
9:
51
FOR
THEWESTERNDISTRICTOF
TEXAS
Y.
.-
Li
L'L
EX
AUSTINDIVISION
BY
fT
U
STEVEN
JOHN
BUST!,
Plaintiff,
-vs-
Case
No.
A-11-CA-1029-SS
PLATINUM
STUDIOS,INC.;
SCOTT
MITCHELLROSENBERG;
UNIVERSAL
STUDIOS,INC.
d/b/aUniversalPictures;and
DREAM
WORKS
II
DISTRIBUTION
CO.,LLC,Defendants.
ORDER
BEIT
REMEMBERED
on
this
day
the Court
reviewedthefile
in
theabove-styled
cause, andspecifically
DefendantsPlatinumStudios,
Inc.,Scott
MitchellRosenberg,UniversalStudios,
Inc.,
andDreamworks
II
Distribution
Co,
LLC's
Motionfor SummaryJudgment
[#5 1],
Plaintiff
StevenJohn
Busti's
Response
[#64]
thereto,
and
Defendants'Reply
[#65].
Havingconsidered
the
documents,
thefile
as
a
whole, andthe governing
law, the
Court
now
enters
the
following opinion
and
orders,granting
summary
judgment
forDefendants.
Background
"An
old cowpoke
went
ridin'
out, onedarkandwindy
day.
Upon
a
ridge herested
as
he
wentalong
his way.
When
all
atoncea[flyingsaucer,zoomingabove] he saw,a-plowingthroughtheraggedskies,and up acloudy
draw."
JOHNNY
CASH,
(Ghost)
Riders
in
the Sky,
onSILVER
(ColumbiaRecords
1979)
(aliens added).
/
Case 1:11-cv-01029-SS Document 70 Filed 08/30/13 Page 1 of 17
 
This
is a
case
about
cowboys.
. .
and
aliens.
As
theabove quote suggests,the partiesin this
case are
nottheonly
artists
to
combine cowboyswiththe un-canny,
andat issuehere
are noless
thanthreeworks combiningcowboys
with
extraterrestrialinvaders.Busti allegeshiseleven-pagecomicbook "Cowboysand
Aliens"
(the
Comic),published
in
January
1995
in
Issue No.
1
of
an
obscurepublicationcalled"BizarreFantasy,"
has beeninfringed
bytwosubsequentworksownedor authored
by Defendants,
each
of
which
is
entitled "Cowboys
&
Aliens."1
The
allegedlyinfringingworks
can
be
described
as
follows:The first,
the GraphicNovel,
wasoriginally
published
in
2006,
with
a
subsequenteditionreleasedin
2011
,2
in
whichaliens,including
somelarge,
muscular creaturesresembling
a
cross
between
agreat apeand
areptile,crash-land
intheWild West,and
attempt
to
enslavebothcowboys
and
ApacheIndians.
After
a
prologuewhichjuxtaposes
images
of
Europeansviolentlysubjugating
the
New
World,
with scenes
of
themonstrous
aliens
conqueringthepeacefulinhabitants
of
other
far-
flung
planets, theGraphicNovelopenswith
aclassic
setup:
a
circledwagon
train, besieged
by
a
horde
of
Indianson horseback.Thehero
of
the GraphicNovel,a cowboy
named
Zeke,attempts
to
escape,in
hopes
of
summoninghelp
from
anearby U.S.
Armypost.Three Indianspursuehim,and
are
about
to
bring
Zeke's
tale
to
anearly
close,
when,with a
"KRAKABOOM!,"
a
burningflyingsaucer
flies
overhead,
to
crash at thebase
of
a nearbycliff.The
threeIndians
go to
investigatefirst
at
a
distancefrom asmall rise,beforegoingcloser.There, they
encounterthe monstrous,
reptile-ape
'In
Busti's
originalComplaint,he
also
cited
a
thirdwork
as
infringing.Thiswas
a
"one-sheet,"published
in
May
1997,
showing
a
cowboy,galloping
on
a
horse,andbrandishing
a
pistol,while
an
ominous-lookingalien
space craftloomsdirectly
overhead,completely filling
the top
half of
the
page.TheCourt previously
dismissed
with
prejudice
any
claimscontingent
upontheone-sheet
as
barred
bylimitations.Order
of
May22, 2012
[#31]
at
5.
2The
Court
also
dismissed
as
time-barred
claimspredicated ontheoriginal, 2006publication
of
the GraphicNovel.
Id.
-2-
Case 1:11-cv-01029-SS Document 70 Filed 08/30/13 Page 2 of 17
 
alienleader,
"Rado Dar,"
as he
walks downthe
standardflyingsaucer ramp,
with
severalminionsintow. TheIndians
attempt
to
greet
RadoDar, but
their overture
is
met with
a
sudden barrage
of
greenenergy blasts,
leaving
all
three
dead.Zeke
observes,but
is
eitherunable
or
unwilling
to
interfere.There
is
no
need todescribethe
rest
of
theplot
in detail:suffice it
to say,
battles,interplanetaryromance,and
high-speedcovered-wagonchases
ensue.
At
onepoint, acowgirlcharacteruses alasso onone
of
the
aliens.The aliens
are
ultimatelydefeatedwhenthe
cowboysandIndiansputaside
theirarchetypicaldifferences,
and
cooperateagainstthe common
foe.
The
second,andno
doubtbest-known
of
all
theworks
involved
in
this
case,
is
the movie
"Cowboys
&
Aliens,"starringHarrisonFord
and
Daniel Craig(theMovie).Itpremieredin
July2011,andwas
subsequentlyreleased
on DVDand
Blu-Rayformats.Despitethe
big names,the filmCowboys
&
Aliens
is
not very
good.Fortunately,
Busti's
claimsagainst theMoviehinge
on thefactit
is
derivative
of
theGraphic Novel,
and
notupon
any
directcopying
in thefilm.
Accordingly,
theCourtwas
sparedthe
necessity
of
watchingCowboys
&
Aliensmore than
once,andthis opinionwillnotdwell onthe
Movie
any
further.
Busti's"Cowboys
andAliens"
Comicopenswith
a
cowboyriding therange, when"all
at
once,"
a
flyingsaucer
zooms overhead.
TheComic
features
alarge,
muscle-bound,vaguelyreptilianaliennamed"Morguu,"wholands
his
flyingsaucer
at
thebase
of
a
cliff
in theWild West,
withsinisterplans
to
enslavehumanity.Descending
fromthe
ramp
of
his
flying
saucer,he encounterstwoApacheIndians whoare
observing
frombehind somerocks.
Morguu
offers
to
spare the
Indians'
lives
if
theybecomehisslaves,an offer theyobjectivelyreject by
manifest
act,
namely
by
throwing
aspear at
Morguu.
Morguuthen
opens
fire
with
an
oversizedblaster,but proves
to
be a
poor
shot,
onlyinjuringone
of
theIndianswhen a
near-missstrikes theground
at
the
Indian's
feet.
The dusty
Case 1:11-cv-01029-SS Document 70 Filed 08/30/13 Page 3 of 17

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