Suing Hollywood

From CrimeReads:

No writer wants to sue a Hollywood studio. It’s expensive, it’s terrifying, and it’s emotionally exhausting  You’ll be publicly called out as a crank, a liar, a money-grubber, a loser, an opportunist, and a troll. You’ll hear that age-old threat: you’ll never work in this town again. 

And you’ll almost certainly lose. 

In their article “Death of Copyright, The Sequel”, entertainment attorneys Steven Lowe and Daniel Lifschitz reviewed over fifty copyright infringement cases filed in the Ninth Circuit by writers against studios and networks between the years 1990 and 2010. Every single writer lost. Those fifty lawsuits represent just the tip of the iceberg; no doubt there are many other justifiably aggrieved writers who didn’t have the money to hire a lawyer, or the emotional stamina to charge into battle against a studio. As Reed Martin writes in his book about filmmaking, The Reel Truth:

One respected journalist who covers the film industry has described screenplay theft as such a regular occurrence – almost as rampant as file sharing – that it has become a sad rite of passage for aspiring screenwriters, “proof that they can write screenplays worth producing.”

Most writers who work in the industry understand that suing a studio, no matter how justified their lawsuit, is a losing proposition—and it’s the writer who almost always loses. Knowing this, why would any writer risk everything to charge into battle as David against Goliath? 

I’ll tell you why: because we’re angry and refuse to let them get away with it. I know, because I’ve been there and done that. I’ve seen the dark side of Hollywood.

. . . .

My journey started on a joyous note. It was 1999 and I had just finished writing my space thriller novel Gravity, about a female medical doctor/astronaut who is stranded alone aboard the International Space Station after the rest of her crew is killed in a series of accidents. Sick and dying aboard ISS, she fights to survive, while on earth, her astronaut-husband desperately hunts for a way to reach her. Heavy on technology, with extensive details about orbital life, ISS, and shuttle operations, the novel took me two years to research and write. I compiled thousands of pages of notes, interviewed dozens of NASA sources, and made site visits to NASA facilities in Texas and Florida. 

A mere week after I mailed the finished manuscript to my editor at Pocket Books, I received a baffling phone call from a Variety reporter asking for my reaction to the movie buzz about my novel Gravity. I had no idea what he was talking about because, as far as I knew, my manuscript was still on my editor’s desk. I later learned that “hot” new novels are sometimes sneaked out of publishers’ offices and quickly land in the hands of movie producers before they’re officially submitted.

Gravity was just such a “hot” new novel, and studios were already circlingNew Line Cinema made a pre-emptive bid to buy the rights, and the seven-figure deal was splashed across the front page of Daily Variety:

New Line and Artists Management Group (the production company) view “Gravity” as a major event pic and look to move quickly to put the elements in place, with a release in either summer of 2000 or 2001.  AMG will likely package the project with as many of the banner’s clients as possible, and Rick Yorn told Daily Variety that he expects to have most major above-the-line talent in place within the coming weeks.

It was one of those “pinch me I’m dreaming” moments in a writer’s career. Gravity would be a major event pic, and veteran screenwriter Michael Goldenberg (Contact) was hired to write the screenplay. The finished script was a faithful adaptation of my novel—perhaps too faithful, as my novel’s climax didn’t have a visually cinematic finish. The third act needed reworking, I was told, and until that happened, nothing could go forward.

Since I already had experience as a screenwriter (my original script “Adrift” aired as a CBS TV Movie of the Week in 1993) I decided to jump-start the stalled Gravity project by rewriting the last fourteen pages of Goldenberg’s script. 

. . . .

In May 2000, Daily Variety reported that the script would be sent out to directors that week, with filming expected by the end of the year, but Gravity became mired in development. Months went by. Feature film rights passed (briefly) to Twentieth Century Fox, then bounced back to New Line. The project faded into oblivion.

In 2008, Warner Bros. acquired New Line in a takeover that “ended New Line’s 40 years as an independent studio.”  While this was big news in the film industry, I wasn’t even aware of it because I was too busy writing books. “Rizzoli & Isles,” the television series based on my crime novels, was a smash success on TNT (it would go on to a seven-season run) and my novels were regularly hitting bestseller lists around the world. As far as I knew, my Gravity film project was dead and buried, and I didn’t give it another thought.

Until 2010, when fans began to email their congratulations about the upcoming Warner Bros. space movie Gravity, which they assumed was based on my novel.

The new movie would be directed by Alfonso Cuaron, and the original screenplay was written by Cuaron and his son Jonas. Online, I found a description of the plot:

The movie’s plot revolves around astronauts repairing the Hubble telescope who are hit with an avalanche of satellite junk. In a plot akin to “Cast Away,” the surviving astronaut must fight her way back to Earth, where she hopes to reunite with her daughter.

I felt a twinge of nausea which only worsened when I found a more detailed description of the plot and learned that Cuaron’s heroine ends up stranded aboard the International Space Station. I knew of no connection between Cuaron and my Gravity project ten years earlier, but the shooting down of a satellite, the debris destroying ISS, the female astronaut desperate to reunite with a loved one on earth, the series of Titanic-like catastrophes leaving her stranded aboard ISS, and the identical title added up to a whopping series of coincidences. True, Cuaron’s tale had none of my novel’s medical details or my long lead-up to the crisis, but there was enough there to give me a jolting sense of familiarity. It’s as if the screenwriters threw out the first three-quarters of my novel and based their entire film on my final chapters.

Had Cuaron heard about my story and reworked it into his script?

. . . .

In October 2013, Cuaron’s Gravity, produced by Warner Bros., was released to great fanfare and went on to gross more than seven hundred million dollars at the box office. Sitting in the theater wearing 3-D glasses, I was awed by the movie’s spectacular visual effects, but that sick feeling of familiarity was back. The satellite debris destroying ISS—that was the scene I’d written in my re-write of the third act. The Sandra Bullock character who worked eighteen-hour shifts in a hospital—wasn’t that the MD astronaut from my novel? The script had changed since the earlier descriptions in the press—the heroine’s daughter was now dead—but I could still see the bones of my story on that movie screen.

Days later, while I was speaking at an Indiana library event, readers again congratulated me on “my” movie. 

. . . .

New York, my literary agent gets a startling phone call, from a Reliable Source who’d worked with the original production team that tried to develop my Gravity into a movie back in 1999-2000. The Reliable Source had a bombshell piece of information to share: Back when my Gravity movie was still in active development, a director had been attached to the film.

That director was Alfonso Cuaron.

“Now I think you need a lawyer,” my agent said.

. . . .

The Reliable Source signed a sworn affidavit and told us where we could find the supporting documents should we go to discovery, but I was still not certain I wanted to sue. My attorney advised me that if I did sue, it could not be for copyright infringement, because of one simple fact: I did not own the film rights. I had sold those rights to New Line Cinema in 1999, and because Warner Bros. had acquired New Line in 2008, Warner Bros. was now in control of my Gravity film rights. Warner Bros. held the copyright, so they had the legal right to make the movie.

“If you do sue them,” he told me, “It will be for breach of contract.”

. . . .

To prevail in a copyright infringement lawsuit, a writer must demonstrate there is substantial similarity between his creation and the defendant’s, and in court this standard proves to be almost impossible to meet. If a producer steals the plot of a novel, changes the character’s names and locations and re-orders a few scenes, those changes alone may be enough to make it impossible for the novelist to win a copyright infringement lawsuit.

But “Buchwald vs. Paramount” established that in breach-of-contract lawsuits, a different standard applies. If a contract exists between the writer and the studio, and if the movie shares only a material element or is merely inspired by the original work, then the movie is considered “based upon” that work—even if adaptation has drastically changed the story. This explains why so many movies adapted from novels may end up wildly different from the original stories, yet retain the “based upon” label.

. . . .

My contract also had an assignment provision (something every film-rights contract should include):

ASSIGNMENT: Owner agrees that Company may assign this Agreement, in whole or in part, at any time to any person, corporation, or other entity, provided that unless this assignment is to a so-called major or mini-major production company or distributor or similarly financially responsible party or purchaser of substantially all of Company’s stocks or assets which assumes in writing all of Company’s obligations, Company shall remain secondarily liable for all obligations to Owner hereunder.

In addition, it included a Continuing Guaranty, requiring a “full and faithful performance” of the studio’s obligations to me, even if film rights to Gravity passed to another studio:

No assignment permitted by the Agreement will relieve Guarantor of its obligations to (Author) with respect to Guaranteed Obligations.

No matter where my Gravity film rights ended up, those clauses ensured that what was promised to me in the contract would be delivered. What I coveted most in the contract was the “based upon” credit. Like every novelist, I want to be recognized for my work—and I want to sell books. If my novel Gravity had been re-released as an official movie tie-in book, how many hundreds of thousands, even millions, of additional copies could I have sold around the world? 

. . . .

Then I came across an article about how the Cuarons had written their screenplay.

They regrouped in the elder Cuaron’s London home one afternoon and began talking about the theme of adversity, about knowing when to fight and when to give up, and the theme of rebirth. And two images drove them: an astronaut spinning into the void and someone getting up and walking away. “Gravity was a metaphor, the force that keeps pulling us back to life,” says Jonas Cuaron.

A first draft was written in three weeks.

I thought about the two years of full-time research and writing I’d devoted to Gravity. I thought of my obsessive attention to details about ISS, the shuttle, EVAs, astronaut training, NASA lingo, aerospace medicine, and everyday life in orbit. I thought about how hard I’d worked to describe a scenario so accurately that even a NASA engineer would not find fault. And here the clever Cuarons had gone from “image of astronaut spinning in space” to a finished screenplay in a mere three weeks.

That’s when I got angry.

. . . .

A jury trial is what every plaintiff hopes for. And it’s what a studio will try to avoid at all costs.

“The best scenario is for this to be settled out of court,” my lawyer said. “But let me warn you now, they will never give you a based-upon credit, because that would be a public slap in Cuaron’s face. They won’t allow that.”

“Whatever happens,” I said, “I want to be able to talk about this. I refuse to sign any nondisclosure agreement.”

I’m sure he must have sighed at that point, because nondisclosure agreements are part of most Hollywood settlements. Lawsuits that make a big splash in the newspapers will suddenly vanish from sight, never to be heard of again, because plaintiffs are paid to shut up, or threatened with financial penalties if they don’t.

Warner Bros. attorneys quietly inquired if I was willing to go to mediation. I said I was. Perhaps this will be handled in a civilized manner after all, I thought. Perhaps they understood that money wasn’t even necessary, just acknowledgment of my grievance. Judge Margaret M. Morrow was assigned to my case, and I hoped she could convince us all to sit down and talk together.

Instead, Warner Bros. hired outside law firm O’Melveny & Myers, known for its ruthless defense of studios, to oppose me. “This means they intend to fight you every step of the way,” my lawyer warned. Alfonso Cuaron’s reputation was at stake and the studio was gong to protect him at all costs. Which meant I had to be destroyed.

The game was about to get ugly.

Link to the rest at CrimeReads

PG says if you want a calm and peaceful life, don’t do business with crooks. Even if you win, the mental and emotional cost is likely to be huge.

Not that anyone in Hollywood is or ever was or will be a crook, just a general observation concerning humankind as a whole.

3 thoughts on “Suing Hollywood”

  1. Wandering cowboy encounters beautiful girl and her father. Evil cattle baron is stealing their cattle and wants their land. Cowboy takes up the fight, nearly loses, but prevails. Cowboy gets girl, and sight of beautiful sunset over the prairie.

    I suspect the stranded astronaut idea will follow the same path. I just watched one on Netflix where two were stranded.

  2. “Not that anyone in Hollywood is or ever was or will be a crook, just a general observation concerning humankind as a whole.”

    How dare you, sirrah! Hollywooders have reputations to maintain, especially with absent owners, and this sort of aspersion — that Hollywooders would even consider honesty instead of parasitism, if parasitism pays a minim more — simply will not do. I do not bite my thumb at you, but I do bite my thumb. (did that need a sarcasm tag?)

    I’ve been through a few of these. They’re unpleasant for everyone. They’re especially unpleasant when packaging issues are intertwined with the writer’s perceptions, let alone rights. I can name half a dozen films off the top of my head — including an Oscar-winner — for which the screenwriting credits that appeared on the theatrical release were… inaccurate (and my clients have paper to prove it, however hidden under confidentiality clauses).

    Bluntly, a large part of the problem results from the WGAw’s failure to successfully transition away from “writers as studio employees” in its thought process, and we’re two business-structure-generations beyond even that change. Without even marginally well accepted default business practices in place, it really is every writer for him/her/it/themself(ves), and that’s before getting to the fact-intensive nature of these disputes.

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