Judge Advances Fight Over Zorro Musical

SAN JOSE, Calif. (CN) – The creator of a musical about the masked vigilante Zorro can move ahead with a lawsuit claiming the character is in the public domain, and that a company purporting to own the rights to Zorro is wrongly deterring the musical from making its stage debut.

Robert Cabell sued Zorro Productions Inc. and owner John Gertz in 2015, after the company claimed Cabell needed a license to stage a Broadway production of his play. Threatened litigation effectively shut down the musical, which Cabell said was poised to become a hit.

Cabell wrote “Z – The Musical of Zorro” in 1996, based on the first Zorro story written by Johnston McCulley in 1919 and the first movie in 1920 starring Douglas Fairbanks. Both works are now in the public domain.

ZPI and Gertz financed Isabel Allende’s 2005 novel titled “Zorro.” Cabell says ZPI and Gertz copied largely from Cabell’s script, which he shared during a 1996 meeting about a possible collaboration. Discussions broke down, and ZPI later produced its own Zorro musical based on Allende’s book. Both musicals are based on Zorro’s early life.

Cabell said ZPI and Gertz have also interfered in subsequent attempts to revive “Z,” notably in Germany, where Cabell through his agent Gallissas Theaterverlag und Mediaagentur licensed affiliates to perform the show in Clingenberg and Villa Fuchs in 2013. ZPI and Gertz filed lawsuits that halted the German productions.

ZPI and Gertz have also blocked several U.S. productions of the musical, according to Cabell, including a 2013 attempt to have the show presented at the 5th Avenue Theatre in Seattle during the 2014 theatre season. Cabell said Gertz and ZPI threatened the theater and that the company employed similar tactics to halt production at the Philadelphia Shakespeare Theatre in Philadelphia and the American Theatre Group in Rahway, New Jersey.

In a ruling partially denying ZPI and Gertz’s motion to dismiss, U.S. District Judge Edward Davila said Tuesday that Cabell can move forward with copyright infringement claims, as Cabell sufficiently alleged that ZPI and Gertz copied “constituent elements” of his work.

“In relevant part, plaintiff asserts that his musical and defendants’ allegedly infringing works uniquely portray the story of a young Don Diego on his journey to becoming ‘Zorro,’ leading to substantial similarities in the theme and plot. Plaintiff further alleges that his musical and defendants’ works incorporate and emphasize gypsies and flamenco dancing as significant to Zorro’s early life when no other authors had previously done so, and that the characters, general mood, and pace of the works are highly similar as a result,” Davila wrote.

“Finally, plaintiff alleges that ZPI copied substantial elements of the songs from his musical and retitled them for its own production. Taking these assertions as true, plaintiff has adequately alleged a claim for copyright infringement, and defendants’ motion to dismiss is therefore denied as to this claim.”

Davila refused to cancel ZPI and Gertz’s trademarks on the grounds they were fraudulently obtained, as Cabell claimed, and found that the company did not interfere with any of Cabell’s contracts in the United States since the alleged contracts to stage “Z” never got beyond the negotiation stage.

Davila also ruled ZPI and Gertz may have intentionally interfered with the German production, since Cabell said they made false representations to Cabell’s licensee Gallissas regarding their copyright and trademark rights, and threatened to sue Gallissas if it continued producing the musical.

In a phone interview, Cabell’s New Orleans-based attorney Greg Latham said both he and Cabell are excited for the case to move forward.

“We’re very happy with Judge Davila’s ruling. We feel that it basically at this stage in the litigation vindicates the claims Mr. Cabell has brought to the court, and even allows us to round out some of the claims that the judge has asked for additional details on.

“We’re very excited that the ruling was favorable and now the litigation can proceed on the merits.”

Cabell is due back in federal court on July 6, where he will ask Davila to rule that the character Zorro is in the public domain.

“Mr. Cabell has a pending partial motion for summary judgment in front of the court now asking for a ruling as a matter of law that Zorro elements first introduced by John McCulley almost 100 years ago are in the public domain and anyone can use it,” Latham said.

Latham said Cabell is likewise happy with Davila’s ruling.

“He’s excited also. This is unfortunately kind of been a long road to get to this point. We’ve been waiting for this ruling for quite some time,” Latham said. “He’s happy with the ruling and now anxious to move to the next stage.”

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