Pryor Cashman has won an appeal before the U.S Court of Appeals for the Second Circuit for clients Sylvester Stallone, Lions Gate Films and Nu Image/Millennium Films in a copyright infringement case concerning the all-star action film "The Expendables."

The movie was co-written and directed by Stallone, and featured Jason Statham, Jet Li, Bruce Willis, Arnold Schwarzenegger, Stallone and other action stars. On February 3, 2014, the Second Circuit affirmed summary judgment for Pryor Cashman’s clients in the case of Marcus Webb v. Sylvester Stallone et al.

“After review by two different courts and four judges, all have agreed with our arguments showing why there is no merit to this case and we are thrilled with that conclusion,” said Partner Tom Ferber, a member of Pryor Cashman’s Litigation, Intellectual Property and Media & Entertainment Groups, and lead counsel for Stallone, Lions Gate and Nu Image/Millennium Films.

Plaintiff Marcus Webb claimed that "The Expendables" copied his screenplay "The Cordoba Caper," both of which tell the story of a team of elite mercenaries who are hired to topple a Latin American dictator named General Garza.

Pryor Cashman had previously won summary judgment from U.S. District Judge Jed Rakoff, who agreed with the firm’s arguments that Webb could not prove copying because he had offered no evidence of access by the defendants to his screenplay, and the film was not “strikingly similar.” Judge Rakoff had also noted that the copyrightable expression of the film and Webb’s screenplay were not actionably similar.

The Second Circuit affirmed summary judgment, holding that there was no actionable similarity of copyrightable expression because the works differed in “overall feel,” and stating that while The Expendables is “a gunfire-riddled ‘pure action’ flick,” Webb’s Cordoba Caper is a “trickery-based true caper.” In closing, the Court said “[w]e have considered Webb’s remaining arguments and find they are without merit.”

The sequel to the film, The Expendables 2, was released in August 2012, and The Expendables 3 is scheduled for release in August 2014.

Representing defendants on the appeal were Ferber, Partner James A. Janowitz and Associate Benjamin Akley.