Alcon Entertainment, producers of “Blade Runner 2049,” have accused Elon Musk and Tesla of infringing its copyrights — alleging the tech mogul blatantly copied an iconic scene from the movie with an AI-generated image intended to promote Tesla’s new self-driving taxi, after Alcon refused to grant any rights related to the 2017 sci-fi epic.
Musk opted for troll mode in responding to news of the lawsuit — saying “that movie sucked” — rather than addressing specifics of the complaint. Tesla and Warner Bros. Discovery, which also is named in the suit, have not commented on the litigation.
How strong are Alcon’s arguments from a legal perspective? Intellectual-property lawyers said the company probably will have a tough time proving that Musk and Tesla directly infringed Alcon’s “Blade Runner 2049” copyrights. But they also said Alcon could be able to make a case that Musk and Tesla’s alleged misappropriation of the movie represented “false endorsement.”
The claims of copyright infringement come down to whether a court (or a jury) finds that the “Blade Runner 2049” image at the core of Alcon’s argument is “substantially similar” to the one Musk used in his Tesla presentation, said Avery Williams, principal at McKool Smith and chair of the law firm’s trade-secret practice.
In the image Musk used, “there’s an orange-hued apocalyptic landscape and a guy in a trench coat,” Williams said. “Those elements have been around in Hollywood for a long time… My opinion is it’s unlikely to be [found] similar enough.”
According to Williams, the fundamental question as a copyright matter is whether the average person looking at the Musk/Tesla image thinks it’s actually from the movie “Blade Runner 2049” — and in Alcon’s own complaint, it said that Tesla and Musk “could plainly see” that the image used in the Tesla Robotaxi launch global livestream “was not an actual still image from ‘BR2049,’ but rather a stylized copy likely to [be] found infringing.”
That “seems problematic to me,” Williams said. “If your argument is that people are going to be confused to the point they think you inked a deal with Tesla, then later you say it isn’t recognizable as a still from the movie, you are kind of coming and going at the same time.”
Moreover, courts have hewed to a high standard when it comes to “substantial similarity” in copyright cases. For example, in 2018, the 9th Circuit Court of Appeals upheld a ruling that found Nike’s famous Jumpman logo — depicting Michael Jordan in midair — did not represent copyright infringement of photographer Jacobus Rentmeester’s 1984 shot of the famous athlete, which does indeed look quite similar to the logo. In a 2-1 decision, the court concluded that “the works at issue here are as a matter of law not substantially similar” and that the choices that went into creating Nike’s Jumpman “produced an image that differs from Rentmeester’s photo in more than just minor details.”
Here is the still image from “BR2049” that Tesla allegedly was seeking to license, which Alcon claims is “one of the most iconic images from the [movie], and also one of the most commercially significant in a marketing sense”:
And this is an image from Tesla’s Robotaxi presentation (included in the lawsuit filing), which Alcon alleges is “an unauthorized derivative work of ‘BR2049′”:
Alcon alleged that the image used in Musk’s presentation “was clearly intended to read visually either as an actual still image from ‘BR2049’s iconic sequence of K exploring the ruined Las Vegas, or as a minimally stylized copy of one.”
Aside from the copyright claims, Alcon may have a stronger argument with its allegation that Musk and Tesla engaged in “false endorsement,” said attorney Rob Rosenberg, who spent 22 years at Showtime Networks, most recently as general counsel, before departing last year. He has since established Telluride Legal Strategies, an independent legal and strategy consultancy.
The fact that Musk and Tesla sought permission to use the “Blade Runner 2049” imagery and were turned down is “a bad fact” for their side of the equation, Rosenberg said. Alcon was “concerned about the brand relationship [with Musk] and I think that will carry some weight with courts. As the owner of a brand and copyright, you have exclusive rights to determine who you’re doing business with.”
The false-endorsement claim is bolstered by Musk’s comments during the Tesla Robotaxi event. “You know, I love ‘Blade Runner,’ but I don’t know if we want that future,” he said, as quoted in Alcon’s lawsuit. “I believe we want that duster he’s wearing, but not the, uh, not the bleak apocalypse.”
Musk’s comment indicates that Tesla was “trying to trade off the goodwill of the ‘Blade Runner’ brand,” Rosenberg said. On this point, Alcon said it has a “Blade Runner 2099” series set at Amazon Prime Video, which currently filming in Europe and the company claimed it’s “in talks with other automotive brands” for partnerships on the Prime Video series. “To me, that’s another factor that bodes well in Alcon’s favor,” said Rosenberg. “It’s one thing to say, ‘Here’s a picture of a guy looking at a post-apocalyptic city’… but the fact this is a franchise in the middle of an extension adds a little more heat and flavor.”
It could also be the case that Alcon, backed by FedEx founder Frederick W. Smith, was primarily trying to make a political statement with the lawsuit — similar the way many musicians have demanded Donald Trump cease using their songs at his campaign rallies. In its suit, Alcon said it wanted “Blade Runner 2049” to have no affiliation of any kind with “Tesla, X, Musk or any Musk-owned company,” given “Musk’s massively amplified, highly politicized, capricious and arbitrary behavior, which sometimes veers into hate speech.” Musk, who has become an ardent Trump backer, is the world’s richest person with a current net worth estimated at just over $270 billion.
Alcon’s lawsuit makes it clear that “they don’t like Elon Musk,” said Patricia Phalen, assistant director in George Washington University’s School of Media and Public Affairs. “Is there really a problem with Tesla using an AI-generated image? Or is this a political thing they’re doing?”
Meanwhile, Musk and Tesla’s alleged use of AI to generate the image in question is incidental to the legal questions in play, said McKool Smith’s Williams. It’s different from copyright lawsuits that have been filed accusing gen-AI companies of stealing copyrighted material to train their large language models, he said, such as the New York Times’ suit against OpenAI and Microsoft.
A similar situation to the Alcon-Musk/Tesla dispute occurred earlier this year involving Scarlett Johansson and OpenAI. The actor said she turned down OpenAI‘s request for her to lend her voice to a conversational ChatGPT system — and then was “shocked” and “angered” that the company went ahead and used a voice that sounded very similar to hers anyway. (OpenAI agreed to remove the voice profile in question.) This, too, was more of traditional controversy, in this case concerning name and likeness rather than an AI-specific issue.
Musk and Tesla didn’t have to use AI to create the alleged infringing image — “they could have commissioned their own artist to copy the ‘Blade Runner’ aesthetic,” said Rosenberg. That said, he added, “I think we’ll see more of this” as generative AI tools proliferate.
Could Alcon reach a settlement with Musk, Tesla and WBD? “When you’re dealing with certain personalities, you never know how that’s going to go,” observed Rosenberg. The question for the parties being sued, he said, is, “Are there are enough atmospherics that make us look bad here?”
From Variety US