Capcom Launches Pre-Emptive Zombie Lawsuit Offensive

There’s never been any question that Dead Rising has taken a cue or two from John Romero’s movie, Dawn of the Dead. In fact, the Dead Rising box even goes so far as to inform customers that “This game was not developed, approved or licensed by the owners or creators of George A. Romero’s Dawn of the Dead,” right on the front.

But, even though the game seems to have been on shelves for around a year and a half without incident, that doesn’t mean that MKR Group, the owners of the DotD rights, still won’t file suit. Since when is any lawsuit in this industry timely, anyway? After all, about a year had passed before Universal decided to go after a company that was a young upstart in America called Nintendo regarding the use of a big ape.

To prevent that little bit of history from repeating itself (though King Kong was in the public domain, anyway), Capcom decided this week to file a request for declaratory judgment and attorney’s fees against MKR, so that they could “eliminate any doubt that its ‘Dead Rising’ videogame does not infringe on any copyright, trademark or other intellectual property rights” owned by that company.

The suit (which can be viewed here in .pdf format, via The Hollywood Reporter) was filed in anticipation of impending legal action by MKR, which would see Capcom sued for copyright and trademark infringement, chiefly for the purpose of allowing distribution of the game to continue.

Capcom’s lawsuit states that MKR sent a letter and a copy of a draft complaint to lawyers for Capcom, Microsoft and Best Buy on February 6th, showing that the wheels were already turning and prompting Capcom to attempt to stop this before it starts.

Even though MKR hasn’t taken legal action yet, their licensing agent, New Line Cinema, did contact Capcom in March of 2006, several months before the release of the game with claims of infringement on their movie. Since then, intermittent talks between Capcom and MKR have taken place, regarding Dead Rising and its possible infringements.

Capcom’s filing states that the concept shared between the two properties, of humans battling zombies in a shopping mall, is “wholly unprotectable.” It has also argued that consumers are unlikely to be confused by the two products, thanks in part to the disclaimer placed on the front of the game’s box. And on top of all that, the filing notes that there are “dozens” of other video games which feature zombies, including Capcom’s own Resident Evil series (which, incidently, has its own movies), Beast Busters, Zombi, CarnEvil, and The Evil Dead.