Writer of "Gravity" says her lawsuit affects all writers?

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  • #31
    Re: Writer of "Gravity" says her lawsuit affects all writers?

    Originally posted by Captain Nemo View Post
    AFAIK, no on in this thread is a lawyer - everything in this thread is speculation. Might be useful to get the perspective of an entertainment lawyer.

    For those who seem to doubt the merits of the case (which is not what is at issue in the judge's ruling) it seems to me she has a very strong case, quite similar to the successful plagiarism suit of Art Buchwald against Paramount, re Eddie Murphy's 'Coming to America' which she cites. The key concept in the judge's ruling in the 'Buchwald' case was *access*. Paramount and Murphy (through his managers) had extensive access to Buchwald's treatment. Below, I've linked a law journal article on the Buchwald case, which includes an interesting history of the concept 'net profits' in Hollywood. An excerpt re *access*:

    "Admitting that there were differences between Buchwald's 'King for a Day' and 'Coming to America', the 'Buchwald' court observed that 'where, as here, evidence of access is overwhelming, less similarity is required."

    In Gerritsen's case, Cuaron, the director of 'Gravity' was attached to the film almost immediately after the rights were sold to New Line in 1999, and clearly had access, not only to the book, but to the additional material she wrote under contract, although she had no awareness of his connection to the film until she was informed of it in February of 2014. Whether her involvement can rise to the 'based on' standard of Fink v. Goodson and Todman (cited in the article), in certainly merits the 'inspired by' standard of Minniear v. Tors. Aside from receiving the profit participation stipulated by her contract, this phrase would surely skyrocket the sales of her book, whose similarity to the film had already been noted by many readers.

    For those who think it's somehow 'too late' for Gerritsen to prevail, this is rarely the case in civil law. I have a novelist friend who recently filed a successful suit against a film producer to recoup $250k in royalties from the video sales of a film made in 1978.

    The second link here, also with an eye on the Buchwald case, is is sort of a thumbnail ethnography of the fundamentally corrupt, insider culture of Hollywood, the reasons why it's so difficult to file a successful plagiarism suit why so few are filed, and the ostracism of those who manage to win their cases rather than settling.

    I would like to hear something from a lawyer regarding the issue of whether New Line's contract was assignable to WB in this case. I asked a non-entertainment lawyer about this, and he said there are very few instances in which both the assets and liabilities are not assumed by the surviving company in a merger.

    http://www.cardozoaelj.com/wp-conten.../02/marcus.pdf

    http://www.filmreform.org/sue.htm
    I'm a lawyer

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    • #32
      Re: Writer of "Gravity" says her lawsuit affects all writers?

      Originally posted by JoeBanks View Post
      I'm a lawyer
      Me too.

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      • #33
        Re: Writer of "Gravity" says her lawsuit affects all writers?

        Originally posted by JoeBanks View Post
        I'm a lawyer
        If so, it seems you might be able to provide more context than you did in your earlier post. Unless there's something here I don't see, it seems Gerritsen's only obstacle is her inability to gain access to the relevant WB documents.

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        • #34
          Re: Writer of "Gravity" says her lawsuit affects all writers?

          I am a lawyer, also.

          This was a motion to dismiss by WB. In a motion to dismiss, the allegations of the complaint are assumed to be true. Outside evidence is not considered; just the allegations of the complaint. This is why the Court refused to consider virtually any of the documents submitted by the parties, other than the complaint.

          A complaint must fairly put the defendant on notice of the plaintiff's factual allegations, theory of liability, and relief being sought. So, the basic question on a motion to dismiss is, are the allegations in the complaint sufficient to state a claim for relief? If the allegations are vague, or don't support the legal claim, or are otherwise deficient, the complaint will be dismissed -- usually without prejudice, so the plaintiff gets a least one "do-over."

          This is a breach of contract action. Not a copyright infringement action. The plaintiff does not question WB's right to use the material. Rather, she says that WB breached a contract with her, by not paying her what she was contractually entitled to receive for the material.

          To determine whether the plaintiff adequately pled a breach of contract, the court had to evaluate the allegations of the complaint. Starting with, is a contract even alleged? Yes -- but not between the plaintiff and WB. This is an obvious problem. Without a contract between the plaintiff and WB, what duty did WB have to pay the plaintiff anything?

          The plaintiff attempted to plead around this problem by alleging various alternative theories of liability (assignment of the contract to WB, successor liability, continuing enterprise, etc.). These may be viable theories, but they are still subject to the pleading rules. The Court took them one at a time, and concluded that she did not adequately plead facts to make out a legal claim under any of these theories.

          What happens now? The plaintiff will file an amended complaint providing more factual detail. There will undoubtedly be another motion to dismiss, and the Court will evaluate the amended complaint to see if it passes muster under the rules. If not, the complaint may be dismissed with prejudice.

          As for whether this lawsuit will affect screenwriters generally, I doubt this is the case. This is not a statement about the merits of the lawsuit; for all I know, the plaintiff may be entitled to every penny she is asking for. But so far, it seems to have more to do with drafting contracts and legal complaints. This is not earth-shattering stuff. If the case did not involve an Academy Award-winning film, I doubt it would garner much notice at all.

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          • #35
            Re: Writer of "Gravity" says her lawsuit affects all writers?

            Originally posted by anxt View Post
            I am a lawyer, also.

            This was a motion to dismiss by WB. In a motion to dismiss, the allegations of the complaint are assumed to be true. Outside evidence is not considered; just the allegations of the complaint. This is why the Court refused to consider virtually any of the documents submitted by the parties, other than the complaint.

            A complaint must fairly put the defendant on notice of the plaintiff's factual allegations, theory of liability, and relief being sought. So, the basic question on a motion to dismiss is, are the allegations in the complaint sufficient to state a claim for relief? If the allegations are vague, or don't support the legal claim, or are otherwise deficient, the complaint will be dismissed -- usually without prejudice, so the plaintiff gets a least one "do-over."

            This is a breach of contract action. Not a copyright infringement action. The plaintiff does not question WB's right to use the material. Rather, she says that WB breached a contract with her, by not paying her what she was contractually entitled to receive for the material.

            To determine whether the plaintiff adequately pled a breach of contract, the court had to evaluate the allegations of the complaint. Starting with, is a contract even alleged? Yes -- but not between the plaintiff and WB. This is an obvious problem. Without a contract between the plaintiff and WB, what duty did WB have to pay the plaintiff anything?

            The plaintiff attempted to plead around this problem by alleging various alternative theories of liability (assignment of the contract to WB, successor liability, continuing enterprise, etc.). These may be viable theories, but they are still subject to the pleading rules. The Court took them one at a time, and concluded that she did not adequately plead facts to make out a legal claim under any of these theories.

            What happens now? The plaintiff will file an amended complaint providing more factual detail. There will undoubtedly be another motion to dismiss, and the Court will evaluate the amended complaint to see if it passes muster under the rules. If not, the complaint may be dismissed with prejudice.

            As for whether this lawsuit will affect screenwriters generally, I doubt this is the case. This is not a statement about the merits of the lawsuit; for all I know, the plaintiff may be entitled to every penny she is asking for. But so far, it seems to have more to do with drafting contracts and legal complaints. This is not earth-shattering stuff. If the case did not involve an Academy Award-winning film, I doubt it would garner much notice at all.
            And he drops the mic to thunderous applause.

            Seriously. Good stuff and nice summary of what actually happened. Thanks.

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            • #36
              Re: Writer of "Gravity" says her lawsuit affects all writers?

              Does anyone else think she's getting terrible legal advice? The initial complaint filed by her attorney is poorly written. I say this as a former M&A paralegal who dealt with much larger companies and their respective liabilities & contracts (Fortune 100 energy sector).

              Originally posted by BillWilliams12345 View Post
              I'd bet a million bucks that the writer had a share of the net profits. Studios make them part of deals but never pay them out. You know the dif between net and gross, yes?
              You know there are different kinds of net points, right? Ie: producer's definition of net is not the same as the standard (writer) definition of net. And points can change once different parts of the investor waterfall have been met, like Cash Break Zero.

              Originally posted by Ronaldinho View Post
              But I don't think there's a copyright infringement claim to be made here. They paid her for her work. They own it.

              It's a breach of contract issue. IF the film is made based on her work, then she's entitled to X, Y, and Z by her contract. They're claiming that they didn't make a film based on her work (which they own, and could have made if they wanted to, I believe). She's claiming they did.
              But the film isn't based on her work, but which is why she doesn't have a legal to stand on with breach of contract. The script that eventually became the final movie GRAVITY, was an original spec script by Alfonso & Jonas Cuaron. If she thinks are too many similarities, then it's case of copyright infringement.
              "Write every day. Don't quit. The rest is all bullshit." - Brian Koppelman

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              • #37
                Re: Writer of "Gravity" says her lawsuit affects all writers?

                Originally posted by mge457 View Post
                But the film isn't based on her work, but which is why she doesn't have a legal to stand on with breach of contract. The script that eventually became the final movie GRAVITY, was an original spec script by Alfonso & Jonas Cuaron. If she thinks are too many similarities, then it's case of copyright infringement.
                Well, WB may claim it's an original spec. The plaintiff claims otherwise. So, it's a disputed issue. That's what lawsuits are for.

                I do agree that at this point, it seems to boil down to a drafting issue, like most breach of contract actions.

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                • #38
                  Re: Writer of "Gravity" says her lawsuit affects all writers?

                  You know there are different kinds of net points, right? Ie: producer's definition of net is not the same as the standard (writer) definition of net. And points can change once different parts of the investor waterfall have been met, like Cash Break Zero.
                  My point was that the plaintiff asking for net profits doesn't make her naive, as someone claimed. But thanks for explaining that profits can have different definitions. Fascinating stuff.

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                  • #39
                    Re: Writer of "Gravity" says her lawsuit affects all writers?

                    Originally posted by anxt View Post
                    Well, WB may claim it's an original spec. The plaintiff claims otherwise. So, it's a disputed issue. That's what lawsuits are for.

                    I do agree that at this point, it seems to boil down to a drafting issue, like most breach of contract actions.
                    Right. Your prior response nails it. In her initial complaint, there's not mention of Universal, which is odd, considering Warner Bros. bought the project out of turnaround from them. So now let me ask a quick hypothetical:

                    Assume the author had her book adapted into SCRIPT A at New Line, and that script fell into development hell and Alfonso Cuaron dropped off the project. Then, Alfonso Cuaron and his son write SCRIPT B, an original spec script and sell it to Universal. Universal still puts it in turnaround, but sells it to Fox instead.

                    That hypothetical should highlight that the sale to WB/New Line was just a coincidence. Isn't this a case of copyright infringement and not breach of contract?
                    "Write every day. Don't quit. The rest is all bullshit." - Brian Koppelman

                    Comment


                    • #40
                      Re: Writer of "Gravity" says her lawsuit affects all writers?

                      Originally posted by mge457 View Post
                      Right. Your prior response nails it. In her initial complaint, there's not mention of Universal, which is odd, considering Warner Bros. bought the project out of turnaround from them. So now let me ask a quick hypothetical:

                      Assume the author had her book adapted into SCRIPT A at New Line, and that script fell into development hell and Alfonso Cuaron dropped off the project. Then, Alfonso Cuaron and his son write SCRIPT B, an original spec script and sell it to Universal. Universal still puts it in turnaround, but sells it to Fox instead.

                      That hypothetical should highlight that the sale to WB/New Line was just a coincidence. Isn't this a case of copyright infringement and not breach of contract?
                      It may be, but even well-developed copyright infringement claims are notoriously difficult to prove. In this case, since there was a contract, the plaintiff's lawyers made the strategic decision to go with the breach of contract theory, rather than copyright infringement.

                      My only quarrel with that is why they didn't plead copyright infringement as an alternative theory of recovery, since there would have been little doubt that WB would deny the existence of a contract in the first place. Their plan may have been to let WB raise that as a defense and then dump a copyright infringement claim on them, but the judge told the plaintiff she can't add any new claims to her amended complaint. To me that's a dubious instruction, but that's what the Court said. So, at this point, if I was advising the plaintiff, I would suggest bringing a motion to amend to add a claim for copyright infringement.

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                      • #41
                        Re: Writer of "Gravity" says her lawsuit affects all writers?

                        Originally posted by anxt View Post
                        It may be, but even well-developed copyright infringement claims are notoriously difficult to prove. In this case, since there was a contract, the plaintiff's lawyers made the strategic decision to go with the breach of contract theory, rather than copyright infringement.

                        My only quarrel with that is why they didn't plead copyright infringement as an alternative theory of recovery, since there would have been little doubt that WB would deny the existence of a contract in the first place. Their plan may have been to let WB raise that as a defense and then dump a copyright infringement claim on them, but the judge told the plaintiff she can't add any new claims to her amended complaint. To me that's a dubious instruction, but that's what the Court said. So, at this point, if I was advising the plaintiff, I would suggest bringing a motion to amend to add a claim for copyright infringement.
                        I agree that it feels like the attorneys were going for a "cleaner" less costly litigation strategy by pursuing a simple breach of contract claim, versus trying to clear the much higher bar of actual infringement.

                        Also, the client's own statements about the lack of similarity between her book and the film itself certainly couldn't have helped their cause:

                        http://www.tessgerritsen.com/gravity...of-separation/

                        "Two tales about a lone female astronaut trapped aboard a space station and struggling to get home. Both are titled GRAVITY.

                        But the movie has absolutely no connection to my book. At least, not that anyone's told me about. (Mr. Cuaron, feel free to email me!)"

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                        • #42
                          Re: Writer of "Gravity" says her lawsuit affects all writers?

                          FYI: Gerritsen v Warner Bros _ Judge's order granting motion to dismiss Jan 30 15

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                          • #43
                            Re: Writer of "Gravity" says her lawsuit affects all writers?

                            The thing I don't understand is, why would they ask the author of the book to write additional material for the film instead of the screenwriter.

                            Last night in San Pedro

                            Comment


                            • #44
                              Re: Writer of "Gravity" says her lawsuit affects all writers?

                              Originally posted by anxt View Post
                              It may be, but even well-developed copyright infringement claims are notoriously difficult to prove. In this case, since there was a contract, the plaintiff's lawyers made the strategic decision to go with the breach of contract theory, rather than copyright infringement.

                              My only quarrel with that is why they didn't plead copyright infringement as an alternative theory of recovery, since there would have been little doubt that WB would deny the existence of a contract in the first place. Their plan may have been to let WB raise that as a defense and then dump a copyright infringement claim on them, but the judge told the plaintiff she can't add any new claims to her amended complaint. To me that's a dubious instruction, but that's what the Court said. So, at this point, if I was advising the plaintiff, I would suggest bringing a motion to amend to add a claim for copyright infringement.
                              Much thanks for your clear summary of the court's decision and your additional posts. The counterfactual plaintiff's strategy you float here was also suggested to me by two lawyer friends with the caveat that they aren't IP/entertainment lawyers. I think for a non-lawyer (myself), the biggest headscratcher is the judge's refusal to refuse to allow discovery of the assignment agreement (presuming that it exists) between WB and New Line in the amended complaint. How are they, then supposed to remedy the supposed technical deficiency.? How is this not circular, 'Catch-22' reasoning? Even you cite this as 'dubious'.

                              Re the substance of the allegation, how is the 'access' standard of 'Fink v. Goodson-Todman', also cited in 'Buchwald v. Paramount', not a sufficient precedent that the film was 'based on' material written by Gerritsen? In writing her own screenplay adaptation of her book while under contract to New Line, she added an entirely new third act concerning a female astronaut set adrift, alone, in an ISS badly damaged by the debris from an exploded satellite. This is the entire setting for the film. Upon being attached to the project, Cuaron had access to her book and her adapted screenplay for a number of years before claiming this his screenplay was 'original'. What am I missing?

                              Cheers,

                              CN

                              Comment


                              • #45
                                Re: Writer of "Gravity" says her lawsuit affects all writers?

                                CN, yes, there is a Catch-22 sense to some of judge's comments about discovery. But that stuff is extremely technical, and what it seems to say may not be what it means. Plus, the judge is necessarily bound by the rulings of the 9th Circuit Court of Appeals, and so it may be Catch-22, but this judge has no ability to remedy that.

                                Actually, this judge has done the plaintiff a great favor by providing so much detail about the problems with the initial filing/complaint. In effect, the judge has provided a checklist for the plaintiff to use when filing the amended complaint.

                                Also, buried in one of the footnotes (page 14):
                                The court cautions, however, that as the case proceeds, and Gerritsen obtains discovery concerning the terms and conditions of the agreement(s) pursuant to which WB acquired Katja and New Line, she must be cognizant of Rule 11 of the Federal Rules of Civil Procedure, and not pursue theories of liability that are clearly foreclosed by the terms of the relevant agreements.
                                Note "as the case proceeds..." Also, while that last bit about Rule 11 is a warning, it is a very helpful warning.

                                To me, all of that suggests the judge believes the plaintiff can meet the burden of her ruling and that the case will proceed. On the other hand, it's quite possible the plaintiff's lawyers are not skilled enough to do that.

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