Mark of the 'Z' Meets Mark of the 'C' in Zorro Suit

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Zorro ("The Fox"), the fictional heroic alter ego of foppish California nobleman Don Diego de la Vega battling oppressors in the Spanish colonial era, has entertained readers and viewers in stories, movies and television for nearly a century.

This month, the swashbuckling hero portrayed in film by actors including Douglas Fairbanks Sr., Tyrone Power, George Hamilton and Antonio Bandaras, and in a Disney tv series by Guy Williams, starred in a lawsuit filed in the United States District Court for the Western District of Washington. In Robert W. Cabell v. Zorro Productions, Inc. et al., the author of a musical based on the swordsman filed a complaint seeking declaratory judgment, cancellation of federal trademarks, injunctive relief and monetary damages.

Cabell alleges his 1996 musical tribute, Z--The Musical of Zorro, is based on Zorro creator Johnston McCulley's The Curse of Capistrano (1919) and Douglas Fairbanks Sr.'s silent classic The Mark of Zorro (1920).  According to his Complaint, reported by Courthouse News Service and THR, Esq., Cabell secured licensing for performance of his musical in Germany (nothing like multiple stabbings and shootings to get German audiences whistling as they leave the theater), but was purportedly confronted with threats of litigation by Zorro Productions, Inc. head John Gertz.

In support of its claim that Zorro has entered the public domain, Caball's Complaint cites a federal judge's footnote in a 2001 case from the United States District Court for the Western Division of the Central District of California, Sony Pictures v. Fireworks Entertainment (156 F.Supp.2d 1148 (2001)), that states: "It is undisputed that Zorro appears in works whose copyrights have already expired, such as McCulley's story, 'The Curse of Capistrano' and Fairbanks' movie, 'The Mark of Zorro.'"

The plaintiff's Complaint alleges the defendants have "fraudulently obtained federal trademark registrations" for various Zorro marks and "built a licensing empire out of smoke and mirrors." Long-time favorite fictional heroes, from Tarzan (see "TUOL" post 2/17/12) to Sherlock Holmes (see "TUOL" post 2/19/13) have been the subject of intellectual property lawsuits in recent times.

Rather than consume precious court time, "TUOL" suggests the parties settle their dispute with epees--the Z-Man would have wanted it that way.

UPDATE: Calif. Appeals Court Allows Ryan O'Neal Libel Suit to Proceed

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In the 7-page decision, Ryan O'Neal v. Craig Nevius (Case No. B238640), the California Second Appellate District Court has ruled the actor and long-time boy friend of the late Farrah Fawcett may proceed with his defamation case against a producer who alleged he stole an Andy Warhol painting from the actress' estate.

As reported by the THR, Esq. blog, the appellate court upheld an earlier trial court finding that denied the defendant's attempt to dismiss O'Neal's complaint under the state's anti-SLAPP law [Calif. Code Civ. Proc. sec. 425.16], ruling: "There is at least minimal merit to the defamation claim to satisfy the evidentiary standard to defeat an anti-SLAPP motion."

O'Neal sued Nevius for defamation and intentional and negligent infliction of emotional distress, seeking more than $1 million damages. (See "TUOL" post 7/18/11). Both Good Morning America and Star Magazine reported--purportedly based on information provided by Nevius--that after Fawcett died of anal cancer in 2009, O'Neal concealed a Warhol portrait of her valued at $30 million in his home that was uncovered after daughter Tatum O'Neal repeated the allegation in her autobiography, Found. The University of Texas, to which Fawcett bequeathed her art collection, sued O'Neal to recover the silkscreen portrait that he insists is his.

The appellate decision sends the case back to the trial court.