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My Gravity Lawsuit and How It Affects Every Writer Who Sells to Hollywood

31 January 2015

From author Tess Gerritsen:

Yesterday, the court granted Warner Bros’s motion to dismiss my lawsuit against them. While Warner Bros crows victory, the judge has in fact left the door open for me to pursue my claim, allowing my legal team twenty days to revise our complaint and address a single issue: the corporate relationship between Warner Bros. and New Line Productions.

. . . .

In 1999, I sold the film rights to my book GRAVITY to New Line Productions. The contract stipulates that if a movie is made based on my book, I will receive “based upon” credit, a production bonus, and a percentage of net profits. The book is about a female medical doctor/astronaut who is stranded aboard the International Space Station after the rest of her crew is killed in a series of accidents. A biological hazard aboard ISS traps her in quarantine, unable to return to earth. While my film was in development, I re-wrote the third act of the film script with scenes of satellite debris destroying ISS and the lone surviving female astronaut adrift in her spacesuit.

. . . .

In 2008, Warner Bros acquired New Line Productions. The takeover was rumored to be brutal, with numerous New Line employees losing their jobs overnight.

Sometime around 2008 – 2009, Alfonso Cuaron wrote his original screenplay “Gravity” about a female astronaut who is the sole survivor after her colleagues are killed by satellite debris destroying their spacecraft. She is left adrift in her space suit, and is later stranded aboard the International Space Station. I noted the similarities, but I had no evidence of any connection between Cuaron and my project. Without proof, I could not publicly accuse him of theft, so when asked about the similarities by fans and reporters, I told them it could be coincidence.

In February 2014, my literary agent was informed of Cuaron’s attachment to my project back in 2000. Now the similarities between my book and Cuaron’s movie could no longer be dismissed as coincidence. I sought legal help, and we filed a Breach of Contract complaint that April. Please note: this is not a case of copyright infringement. Warner Bros., through its ownership of New Line, also owns the film rights to my book. They had every right to make the movie — but they claim they have no obligation to honor my contract with New Line.

This is why every writer who sells to Hollywood should be alarmed.

It means that any writer who sold film rights to New Line Productions can have those rights freely exploited by its parent company Warner Bros. — and the original contract you signed with New Line will not be honored. Warner Bros. can make a movie based on your book but you will get no credit, even though your contract called for it.

Link to the rest at Tess Gerritsen and thanks to Clair for the tip.

Here’s a link to Tess Gerritsen’s books

 

 

Contracts, Legal Stuff

19 Comments to “My Gravity Lawsuit and How It Affects Every Writer Who Sells to Hollywood”

  1. As an IP lawyer once warned a writer friend who was in the process of selling his book to Hollywood: “They got ways to f*** you you haven’t even thought of yet.”

    Some things never change.

  2. Waiting for PG to weigh in on this one. If one company acquires another, isn’t everything acquired? Like previous contracts?

    Dan

    • Thoroughly bad and wicked companies try to eat their cake and have it.

      In this case, it sounds rather as if Warner thought that (a) they could eat their cake, because they had acquired New Line and all of its contracts as assets, and therefore held the rights to make the Gravity film; but (b) they could still have their cake, because it wasn’t their signature on the contract and they were not bound to hold up their end of the deal. This would mean that a corporate acquisition gave them the contractual rights, but none of the contractual responsibilities, and that they had scooped up a valuable asset for nothing.

      I went through something very similar (fortunately, on a far smaller scale) when my ISP was swallowed by the local telephone company, which then insisted that I had to pay for the full term of service that I had signed up for, but they had no obligation to actually provide that service. My contract with the ISP gave me a block of static IP addresses; the telco cancelled that service outright. Instead, they proposed to give me an inferior grade of service, on which I could not run my own servers, which was the only reason I had signed the damned contract in the first place – and they also proposed to increase the price by about 70% on the inferior service, so that where I had paid in advance for a year, they would only give me seven months.

      I got out of that one by sacrificing the money I had already paid, telling the telco to go to Hell, and taking my business elsewhere. The money involved was not enough to be worth a lawsuit – but to this day, almost 15 years later, I still refuse ever to deal with that company again, and it has cost them a great deal more money than they stole from me at the time.

      It’s a real pity that Ms. Gerritsen cannot just walk away with the Gravity rights, since Warner have effectively destroyed the future value of those rights by making the film.

  3. Sounds to me like the Bablyon 5/Deep Space Nine thing. The ideas have some similarities, the company producing one was aware of the other, but the writing is all different. If writers could be sued for writing something based on an idea similar to something else they’d read, many genres wouldn’t exist.

    Maybe there’s something I’m missing here?

    • Territsen wrote a book and sold the film rights to New Line Cinema in 1999. Cuaron, the director of the film, was “attached to the project” in 2000, meaning that he would’ve been aware that this potential film was based on Territsen’s book, even if he didn’t read the book.

      New Line Cinema was sold to Warner Brothers in 2008, and Warner Brothers appear to be claiming that they acquired New Line’s assets (allowing them to make the film), but didn’t acquire any obligations along with those assets (like having to pay Territsen and acknowledge her as the original author).

      I have to admit, I’m confused as to how this could be legal. Maybe there was a clause in Territsen’s contract with New Line that allowed it, but surely her lawyer would’ve shot it down?

      • But, from the description here, the only similarity between the book and the movie is that there’s a female astronaut stuck in space. Gravity, the movie, is about a female astronaut stuck in space after a space shuttle explodes, trying to get back to Earth. Gravity, the book, according to this article, is about a female astronaut stuck on the space station.

        Two different scripts, two different stories, two vaguely similar ideas. DS9 had more similarities to B5 than these two appear to.

        I’m still trying to figure out what’s supposed to be illegal. Just about everyone writing scripts for Hollywood knows that a great idea plus five bucks will buy you a cup of coffee. It’s the script that counts, and scripts are copyrighted…. but he’s not claiming they reused his script. Ideas are everywhere, can’t be copyrighted, and are reused all the time.

        Do you think no-one who read Twilight should be allowed to write a paranormal romance?

        • You appear to have missed the part where Ms. Gerritsen says she rewrote the third act of the screenplay to have the astronaut stranded in space, and not merely on the space station. That makes for a much stronger similarity between her work and the film, and the fact that Cuaron was ‘attached’ to the project about that time shows that he had free access to her work, presumably including the revisions to the unproduced screenplay.

          Same title, same central character, same situation, and the person who wrote the ‘original’ screenplay in 2008–09 was employed on the adaptation of the novel several years earlier. At the very least, this is enough to make you go ‘hmmm’. Unless Ms. Gerritsen is flat-out lying about the earlier screenplay, I should say that she has at least a plausible case.

          • The original writer would presumably have to prove that this script is somehow a derivative of her work within the bounds set by copyright law, and that doesn’t seem likely to me.

            Of course I’m not a lawyer. But just reusing an idea is not illegal; every time there’s a big Hollywood success, a dozen other companies produce similar movies to cash in on it. Every time there’s a big success in publishing, a thousand writers write similar novels to cash in on it.

          • The original writer would presumably have to prove that this script is somehow a derivative of her work within the bounds set by copyright law, and that doesn’t seem likely to me.

            That would be true if this were a copyright infringement suit. But it isn’t. The allegation is that New Line bought the rights to make a film, and Warner eventually exercised those rights, but never made the payments due per contract. It looks to me as if Warner will have to prove that the recent film Gravity is completely unrelated to the unfinished New Line film project of the same name, despite the identical title, the closely similar story lines, and the continuity of personnel between the two. I defer to the lawyers among us, of course, but it seems to me that this would be substantially harder to defend than a claim of copyright infringement.

        • Do you think no-one who read Twilight should be allowed to write a paranormal romance?

          Tempting 😉

          But this is a contract dispute, not a copyright infringement case. If someone at New Line or Warner Brothers had just read the blurb on the back of the book and thought, “That’s a good idea for a movie,” I agree there wouldn’t be a case to answer. But Gerritsen (not Territsen – sorry!) had a contract with New Line that allowed them to make a film based on her book. They appeared to be progressing towards getting that film made, but then Warner Brothers bought New Line, and Warner Brothers claim that they got the benefits of New Line’s contract with Gerritsen without any of the obligations.

          • IANAL but I don’t see how this would be impossible. There will – I guess – be a written contract between New Line and Warner, and it will specify exactly what is and isn’t included in the sale.

            It would be possible for a smart lawyer to word that contract in a way that includes a ‘rights but not obligations’ clause.

            This is normal on sale of a distressed company. E.g. if Big Evil Company takes over Struggling Retail Chain they can keep the inventory and floorspace, but without any obligation to provide warranty service to previous customers.

            The old contract between customers and Struggling Retail Chain becomes worthless.

            This is not to side with Warner. They’re clearly acting in a despicable way, and I hope I’m wrong and Gerritsen wins.

            But it depends on the details of the sale negotiations, and if there’s anything that parses as a ‘rights but no obligations’ clause, Gerritsen will lose.

            If there’s no ‘rights but no obligations’ clause Warner are chancing their luck, and I hope Gerritsen’s legal team screws them for everything they can.

            My guess is the details won’t be in Gerritsen’s contract, but will be available in the records of the sales negotiations if enough legal pressure can be applied.

          • I wonder if it’s more a case that Big Evil Company is supposed to honour warranties, but they know that if they say they’re not going to, customers of Struggling Retail Chain will have to sue Big Evil Company to get warranty service, and almost all of them won’t bother – if you can afford to sue, you can afford to buy a new item from someone who isn’t Big Evil Company.

            Can contractual obligations be made to disappear simply by selling the company to someone else? If so, surely everybody would be doing it, and no contract with a company as one of the parties would be worth anything.

  4. Considering that this is practically the whole point of the book business now–acquiring properties appropriate for Hollywood–just get the best agent and attorney you can going in. You’re going to be screwed but make them pay for the pleasure of doing so.

  5. I think it was Tom Wolfe who said the way to deal with Hollywood is to take the money, throw the book over the wall, and drive away.

  6. Hi, nice to be noticed by PG! For more information regarding “Copyright infringement” vs. “Breach of Contract,” I’ve written a blog post explaining the difference — and why “Breach of Contract” lawsuits are far, far easier to pursue for authors.

    Copyright infringement lawsuits are almost impossible to win, even when the material is obviously stolen. Authors just can’t catch a break on these. Hollywood wins almost every time.

    Would love to hear PG’s take on this.

    http://www.tessgerritsen.com/difference-breach-contract-copyright-infringement/

  7. A con artist or a swindler with lawyers as back-up is a savvy business person.

  8. YIKES. I hadn’t heard anything about this. All my sympathy to Tess Gerritsen, a true professional!

    And it’s another example of why the motto about Hollywood I’ve heard all my life is: The writer got screwed.

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