Alcon Entertainment, LLC v. Tesla, Inc.

Where the case stands

On 21 October 2026 Magistrate Judge Oliver issued an order with a tentative ruling on Alcon’s renewed request to depose Musk and Tesla design executive Franz von Holzhausen (ECF 231, as described in ECF 242 at 1). The tentative itself is not among the filings reviewed here. Both sides describe it in ways that indicate it would not require Musk to be deposed: Alcon calls agreeing to it “voluntarily submitting to an order that effectively precludes Alcon from taking any deposition of Musk at all,” and Tesla and Musk say the court “correctly applied” the apex standard in reaching it (ECF 242 at 3, 8).

The court asked the parties whether they would agree to have the tentative entered as a final order. Their joint status report of 28 October 2026 says they have agreed, or are likely to agree, on the first three of Alcon’s five numbered conditions (Tesla and Musk count four). They have not agreed on condition 4: whether Tesla and Musk give up certain summary-judgment arguments about Musk’s personal role (ECF 242 at 1-3). The court has not ruled on the report.

The claim: Image A and Image C

Alcon says it is the sole copyright holder of all relevant rights in Blade Runner 2049, the sequel to the 1982 film Blade Runner (ECF 149-2 at 1). Its account of the event, in its portion of the June 2026 joint stipulation, runs as follows. Tesla held the “We, Robot” reveal for its cybercab and Optimus robot on 10 October 2024 at the Warner Bros. Discovery studio lot in Burbank (at 1-2). Tesla first tried and failed to license Image A, which Alcon calls “arguably the single most recognized still image” from the film, for Musk’s opening keynote. Then, as the Third Amended Complaint alleges, one or more Tesla employees used AI image generation software “referencing one or more literal copies” of the film to create a substantially similar illustration, Image C. Musk showed Image C in the keynote and made remarks that, Alcon says, identified it as an illustration of the film’s core sequence (at 8-9).

Tesla and Musk tell a different story. They say an employee started from a desert landscape found by searching Adobe Stock. He did not search for “Blade Runner 2049” or any related terms. He deleted a cross from the photo, added a dusty cityscape with Photoshop’s generative fill tool, which takes text prompts, and added a Musk-like figure in a trench coat the same way. Another employee adjusted the colors and edited the figure’s hand into a fist. The words “Not This” were added and the slide was shown for 11 seconds (ECF 149-2 at 3-4, 22-23). They say discovery shows Tesla did not put Image A or the film into an AI image generator and did not “train AI” with Image A, and they call Alcon’s AI-generation theory “now-refuted” (at 4-5). They note that the court relied in part on Alcon’s information-and-belief AI allegations when it denied their motion to dismiss (at 5 n.2, citing ECF 98).

The two sides also disagree about the images Tesla did not use. Alcon says von Holzhausen chose Image C from about ten replacement images made in a rush on the day of the event, and that Tesla documents and testimony show many of them were apparently made by putting copies of parts of the film into an AI image service (at 13). Tesla and Musk say that is “not true” and that no AI-generated image was used to create Image C (at 23 n.6).

Damages are contested too. Alcon points to car-brand tie-ins with the film that it says commanded $500,000 in cash plus a $30 million committed media spend, for fewer seconds on screen than the 11 seconds here. It also argues that an unwanted association with Musk damages the film’s value (at 11-12). Tesla and Musk say Tesla made no profit from Image C and that a license for Image A was worth no more than $500, the value of the still license Warner Bros. Discovery first offered (at 28). In August Judge Oliver ordered Alcon to produce three settlement agreements, including one connected to a 2016 promotions license with Peugeot that Tesla says underpins Alcon’s hypothetical-license damages theory, for outside counsel’s eyes only (ECF 179 at 4-7).

How the deposition fight got here

What Alcon says only Musk knows

• He is a party, and he was on stage. Alcon says Musk is a named defendant who presented Image C himself, so the apex doctrine either does not apply or applies differently (ECF 149-2 at 9; ECF 242 at 3, 5-6).
• His own words. Alcon says the final keynote script did not include Musk’s reference to the film and that he appears to have ad-libbed it, so “only Musk knows why he did that” (ECF 149-2 at 10-11).
• Intent and fair use. Alcon argues intent bears on willfulness and on substantial similarity, citing Wozniak, Paramount v. Axanar and Shaw v. Lindheim. It says the fair-use defense rests on what Musk meant to comment on, which only he can explain (at 10).
• Approval by silence. In the status report Alcon says Tesla’s Rule 30(b)(6) witness testified that Musk “did approve Image C by silence following his review of it” (ECF 242 at 4).
• Less intrusive means were tried. In June Alcon said Musk had produced no documents and his interrogatory responses were unverified (ECF 149-2 at 11). It now says it pursued alternative discovery first (ECF 242 at 6). It also cites a ruling of 27 October 2026 by Magistrate Judge Pedro V. Castillo, U.S. ex rel. Integra Med Analytics v. Nelson, holding that an executive who was also an individual defendant had no protection from deposition (ECF 242 at 3-4).

What Tesla and Musk say about the apex doctrine

• Naming him changes nothing. They cite cases holding there is no bright-line exception for named defendants. The test is still whether the witness has unique first-hand, non-repetitive knowledge and whether less intrusive methods have been exhausted (ECF 242 at 7-8, citing Apple v. Samsung as applied in Givens v. Newsom).
• No unique knowledge. They say every Tesla employee deposed with knowledge of the events testified that Musk had no part in licensing Image A or in creating or selecting Image C. They say von Holzhausen made the selection and that the meeting invites Alcon relies on do not show Musk attended (ECF 149-2 at 16-17, 21-25).
• Intent is irrelevant. They say substantial similarity in the Ninth Circuit is an objective extrinsic test plus an ordinary-observer intrinsic test, and that neither looks at the defendant’s intentions. Musk’s remarks came after the image was made and chosen, and he referred only to the earlier Blade Runner film and to the figure’s duster jacket (ECF 149-2 at 25-26). Fair use, they say, turns on Tesla’s purpose, not Musk’s (at 27).
• Less intrusive means came first. In June they faulted Alcon for noticing Musk before taking Tesla’s Rule 30(b)(6) deposition (ECF 149-2 at 28-29). Judge Oliver later strongly encouraged Tesla to produce its 30(b)(6) witnesses before the briefing schedule (ECF 179 at 2).
• The assurances answer Alcon’s concern. Musk will not rely on his own declaration or testimony, will not argue from his subjective intent, and will not bring a Rule 56 motion that depends on Alcon lacking evidence of that intent (ECF 242 at 8-9). They distinguish Integra because scienter was an element of the claim there (at 8).

The 28 October status report

Subject to a complete agreement, the report lists these points (ECF 242 at 2-3):

1. Tesla would produce von Holzhausen for up to two hours of examination, provided Musk is not also deposed. Alcon would accept a date slightly after the current 6 November deadline, but not much later.
2. Tesla wants to supplement its answer to Interrogatory No. 25, on the basis for its fair-use defense, and would then treat it as complete. Alcon wants to see the answer first.
3. The parties discussed treating verifications Tesla served on 19 October 2026, after the discovery cut-off, as valid. Alcon has not yet assessed Tesla’s authority on that point.
4. Musk will not submit a Rule 56 declaration for any purpose.
5. If agreement is reached, neither side would challenge the order before Judge Wu.

The open item is Alcon’s condition 4. Alcon wants Tesla and Musk to agree not to move for summary judgment on the ground that Musk did not authorize, direct, participate in or serve as the “guiding light” for the alleged infringement, or on any issue where his lack of intent would decide it. They would remain free to move on other grounds such as lack of substantial similarity, and to contest these issues at trial (ECF 242 at 3). Alcon’s fallback is that any order denying Musk’s deposition be without prejudice. It could then renew its request promptly once Tesla and Musk give notice of such a motion, notwithstanding the cut-off (at 6). Tesla and Musk say the condition would have Musk waive his individual-liability defenses and that they cannot agree to it (at 6-7).

Warner Bros. Discovery’s exit

On 18 September 2026 Alcon, Warner Bros. Discovery, Tesla and Musk stipulated that Alcon and Warner Bros. Discovery had settled and that the Third Amended Complaint be dismissed with prejudice as to Warner Bros. Discovery only, with each side bearing its own fees. The stipulation says Alcon, Tesla and Musk have not settled. It asks the court to keep jurisdiction to enforce the settlement (ECF 200 ¶¶ 1-6). The terms are not in the filing. ChatGPT Is Eating the World reported the settlement on 19 September 2026.