United States Court of Appeals for the Second Circuit

Case No. 10-2690-cv, Filed February 20, 2009

As comics often serve as sources for developing video games, we note with some interest a ruling by the second circuit on Friday, June 24, 2011, concerning whether the 2008 film You Don’t Mess with the Zohan infringed a comic book creator’s copyright in his story. Robert Cabell filed suit in 2009 alleging that his comic character, Jayms Blonde, a gay ex-US Navy SEAL wielding an Uzi disguised as a hair dryer, was the unauthorized basis for the film’s Zohan character, a former Israeli counterterrorism agent who leaves the Mossad to become a hairdresser.

A district court in New York had granted summary judgment to the defendants on May 26, 2010. The court found that at the base of both works was the unprotectable idea of a crime fighting hairdresser, and any protectable expression of that idea was only superficially similar between the characters concerned in the suit. The district judge elaborated that the characters were easily distinguishable beneath the surface-level similarities. For example, while the Jayms Blonde comics were rife with humor “based on gay double-entendre,” Zohan “derives much of its humor by exaggerating Arab and Israeli stereotypes." Also, while both works were filled with sexual humor, in Zohan the character’s exploits with members of the opposite sex, and the “average lay observer would not mistake Zohan’s escapades with his elderly female clients for any of Blonde’s amorous activities.”

Campbell tried to prove that Adam Sandler, the film’s star and co-writer, had access to his work because they were MySpace friends. The judge found the submitted evidence, a screenshot of a MySpace page displaying an Adam Sandler profile picture, to be unconvincing as many MySpace users frequently put up publicly available images to impersonate celebrities. In addition, Sandler said in a sworn declaration that he never had a MySpace account. Judd Apatow, who wrote the screenplay, also swore that he finished the screenplay in July 2000, well before Cabell’s comic was published in 2002.

In a summary order on June 24, the 2nd Circuit affirmed the lower court’s order of summary judgment as “thorough and well-reasoned.” The 2nd Circuit opinion reiterated that “aside from the unprotectable ideas of brandishing a blow dryer as a weapon, and the characters’ fighting poses, there is no plausible basis for a reasonable jury to find that the parties’ respective expressions of the concept of a crime fighting hairdresser are substantially similar.”