The Expendables is a “gunfire-riddled ‘pure action flick’ ” straight out of the 1980’s with its many explosions, gunfights and fellas with bulging biceps littered with tattoos and skulls. And, oh, yes, the tough guys in this movie are maybe a bit mossy, too: Sylvester Stallone, Dolph Lundgren, Jet Lei, Arnold Schwarzenegger, Bruce Willis and Jean Claude Van Damme. They’re supposed to be hard-bitten mercenaries, taking names and whooping on foes as a rock soundtrack throbs in the background. And how is this all substantially similar to a film plot with tough women, horseback galavanting in Latin America and characters who use their smarts to pull off a nifty crime? Not at all, said the U.S. Court of Appeals for the Second Circuit, as it upheld a federal district court’s tossing Marcus Webb’s claims of copyright infringment against Stallone and others over the screenplay for The Cordoba Caper.

The appellate court said that Webb, to establish infringement, had to prove:  “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.”  To show copying had occurred, he had to prove:  (1) actual copying of his work by the defendant and (2) that such copying equaled an improper appropriation of the Webb’s work. To demonstrate improper appropriation, Webb had to demonstrate “substantial similarity.”  When reviewing substantial similarity, the court compared “the contested design’s total concept and overall feel with that of the allegedly infringing work.”  The judges also examined similarities between “theme, characters, plot, sequence, pace and setting of the screenplay and film.”

The appellate court found that the works share some common elements but no reasonable jury could find the works substantially similar.  Unlike the “macho rogue military mission” depicted in The Expendables, Cordoba is a “tale of a cunning heist with sensitive and human characters,” strong female figures, and it is set against the background of horseback riding through the Andes Mountains with Native American ceremonial costumes, food and music, the appellate court noted.

It was a small victory in Stallone’s continued mission to protect The Expendables.  According to The Hollywood Reporter, he is still facing a battle with writer, David Callaham, over his script, Barrow, which is based on the U.S. government’s hiring of Blackwater military contractors in Iraq.