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 circling. New 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 my revised third act, an Air Force satellite with a decaying orbit is on a collision course with the now-crippled ISS. To save the station, NASA makes the desperate decision to shoot down the satellite, but the debris collides with ISS anyway, and the destruction of ISS leaves the heroine adrift in her space suit, untethered. I faxed those pages to AMG, confirmed that they’d arrived safely, and crossed my fingers, hoping the project would get back on track.
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? I couldn’t prove he had access to my story. I avoid conflict like the plague, had never sued anyone in my life, and I didn’t want to tangle with the same company—Warner Bros.—which was producing “Rizzoli & Isles.”
So I did nothing.
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.
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. There was a reporter in the room, and I was afraid of getting sued for slander if I publicly accused Cuaron of theft, so told my audience the similarities were merely coincidental. Nevertheless, the reporter went on to question the “coincidental” similarities in his article:
So, two stories titled “Gravity.” Each focusing on a lone female astronaut. Each trapped aboard a space station orbiting 400 miles above the earth and fighting against all odds to get home. Hmmmm.
Fast forward to February 2014. I’ve left the Gravity issue behind me months ago and am hard at work on my new novel, Die Again. Meanwhile in 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.
* * *
And that was the beginning of my long, dark journey into the wilderness of Hollywood lawsuits. 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.”
Which turned out to be very good news, thanks to the famously groundbreaking lawsuit “Art Buchwald vs. Paramount Pictures Corporation.” In 1988, writer and humorist Art Buchwald sued Paramount Pictures for breach of contract after Paramount failed to credit him for the story that became Coming to America, starring Eddie Murphy. In 1983, Paramount optioned Buchwald’s film treatment, “It’s a Crude, Crude World,” about an African king who comes to America seeking weapons. Through a series of misadventures, the king ends up stranded in the ghetto, where he falls in love. While there were a number of differences between “Crude, Crude World” and Coming to America, there were enough similarities to convince Buchwald he’d been ripped off. Since Buchwald had a signed contract with Paramount, this was not a case of copyright infringement. This was a breach of contract, which made Buchwald’s case all the more powerful.
Buchwald won his case, and “Buchwald vs. Paramount” revealed a whole host of industry secrets, including Hollywood’s shady accounting practices which guarantee that even the biggest blockbusters will almost never earn net profits. The lawsuit resulted in a written decision that offers hope to all writers in Buchwald’s position: the definition of “based upon.”
Based on the decisions in Fink and Weitzenkorn, and the contract involved in this case, the Court concludes that Paramount’s obligation to pay Buchwald arose if “Coming to America” is based upon a material element of or was inspired by Buchwald’s treatment.
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.
I had no doubt that Cuaron’s Gravity and my Gravity shared material elements, from the astronaut-heroine, to the specific setting on ISS, to the “stranded alone in orbit” crisis, to the identical title. And now we had a sworn affidavit that Cuaron was once attached to my project. Most important, I had a signed contract with New Line Cinema that promised me a “based upon” credit if a movie was ever made based on my novel. 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?
I told my lawyer, “I’ll be happy if Warner Bros. just gives me five bucks and the based-upon credit promised in my contract.”
Legal documents whizzed back and forth between my lawyer and Warner Bros. Since I’m a pack rat, I had retained thousands of pages of research files and communications from my work on Gravity fifteen years earlier, and I still had the original fourteen-page rewrite I did of the Gravity screenplay. The pages were a little yellowed, the print a little faded, but there it was: physical proof that I was the one who first proposed the scenario of the satellite shoot-down, the debris destroying ISS, and the heroine adrift in her space suit. None of this seemed to sway Warner Bros attorneys, who refused to seriously address my concerns. To them, I was probably just a crackpot writer trying to steal a fast buck.
I continued to waver between suing and not suing.
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.
* * *
On April 29, 2014, my attorney filed a breach of contract complaint against Warner Bros. He warned me what would follow. He said I’d experience emotional ups and downs, that the studio would threaten me with legal repercussions, that there’d be many points in the process where we could fail. He walked me through the sequence of events that would follow.
Warner Bros. would file a motion to dismiss. If the judge granted it, our lawsuit was over. If the judge denied it, then we would move on to “discovery.” At this point, all requested documents would be made available and witnesses deposed. Warner Bros. would then likely file a “motion for summary judgment,” asking the judge to make a decision from the bench. If the judge ruled against me, my lawsuit would be over. If the judge declined to issue summary judgment, then the case would go to trial—and a jury.
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.
How dare I accuse the great director? To judge by the comments, I was a nobody, a liar, a failed writer who craved attention and big bucks.
Whenever news about a writer suing a Hollywood studio hits the internet, it’s inevitable that sneers and jeers aimed at the writer will turn up in the comments sections. That’s certainly what happened when the case of “Gerritsen vs. Warner Bros.” was reported. How dare I accuse the great director? To judge by the comments, I was a nobody, a liar, a failed writer who craved attention and big bucks. One industry insider who hosts a popular screenwriting podcast compared me to a patent troll. (Apparently, I’d squatted for fifteen years on the title Gravity, waiting to sue anyone who used it.)
The opposing attorneys sent my lawyer a series of antagonistic messages, which seems to be standard operating procedure when it comes to lawsuits. They claimed Cuaron was never associated with Artists Management Group and they demanded we prove that he was. We responded with multiple named sources, plus an article in Variety confirming his connection. They threatened me with legal action for revealing privileged information, because I’d talked about a detail from the earlier Gravity script, where the heroine’s daughter was still alive. I responded with the 2010 press release from Warner Bros. itself revealing that particular detail. They threatened repercussions because I’d commented online about my case. My attorney countered drily: “My client is exercising her First Amendment rights.” Intimidation was part of their strategy, and the aim was to scare me—or exhaust me—into dropping my lawsuit.
As we expected, they filed a motion to dismiss. Also as we expected, they emphasized the differences between my Gravity and Cuaron’s Gravity. What we did not expect was their key argument for dismissal: that Warner Bros. was not obligated to fulfill any contracts signed by its subsidiary New Line Cinema, because Warner Bros. was not a party to those original contracts.
Warner Bros. never entered into a contract with Ms. Gerritsen regarding her Book… And while she alleges that “WB and New Line guaranteed ‘full and faithful performance; of the Purchase Agreement, the Guaranty does not include Warner Bros. as a party.
By acquiring New Line Cinema, Warner Bros. had acquired its assets—but they claimed they assumed none of the obligations that came with those assets.
I found this argument both alarming and ominous. So did my lawyer. It means that if a writer sells his story to Movie Company A, which is later acquired by Company B, then Company B can legally exploit that story—without honoring the contracted obligations to the writer. It means that company mergers and acquisitions will render a writer’s earlier contracts worthless. It also throws out any possibility of copyright infringement lawsuits, because Company B assumes full ownership of that copyright through its acquisition of Company A, and can therefore legally exploit the author’s story, word for word, without fear of either a copyright infringement lawsuit or a breach of contract lawsuit.
As my lawyer said, “This is the perfect crime. It’s legalized theft and it leaves a writer with absolutely no remedy.” I couldn’t imagine the judge would agree with Warner Bros.’s argument.
I was wrong. She did.
In her order granting the motion to dismiss, Judge Morrow wrote:
Because Gerritsen has failed to plead plausibly that WB is … New Line’s successor-in-interest with respect to the Contract and Guaranty… this liability theory does not provide grounds for denying defendants’ motion to dismiss…
And more astonishing:
Even had Gerritsen satisfactorily pled unity of interest, the court could not find that she has adequately alleged that an inequitable result will follow if the corporate separateness of the defendant entities is not disregarded.
In other words, even though I had no possible remedy for either copyright infringement or breach of contract, even if the movie had copied my book word for word, she saw no injustice or inequality in the situation. She allowed us twenty days to amend our complaint, which would have to provide extensive details about the WB-New Line merger. Since she had denied us any chance at discovery, all this information would have to be gleaned from publicly available documents.
___________________________________
This essay originally appeared as a chapter in Hollywood vs. The Author
Edited by Stephen Jay Schwartz, Published by Rare Bird Books (2018)
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My legal team got to work, and on February 19, 2015 they filed the 25-page amended complaint. It included the 2008 WB press release declaring that “New Line Cinema will be operated as a unit of Warner Bros.,” and multiple news reports in the press that “New Line Folds into Warner Bros.” and “Warner Bros. Absorbs New Line.” It listed all the ways that New Line and WB demonstrated unity of interest: they share the same address, phone numbers, website, legal department, accounting and media departments, and many of the same executives. All intellectual property acquired by New Line is now deemed automatically transferred to and owned by WB. In sum, my legal team argued, Warner Bros. and New Line shared unity of interest and ownership.
Once again, Judge Morrow disagreed.
On June 12, 2015, she ruled:
The court cannot agree that WB’s exercise of control over Katja and New Line plausibly suggests that it intended to assume all of Katja’s and New Line’s liabilities and obligations following the purported consolidation.
Without benefit of discovery, without access to corporate merger documents, we were expected to prove that Warner Bros. had intended to assume the liabilities of its subsidiary company. Although Judge Morrow demanded the impossible, my legal team was eager to roll up their sleeves and get to work on a second amended complaint. But even if we appealed and won this single issue in a higher court, the lawsuit would still be sent back to Judge Morrow for trial, and it was clear to me that she would rule against us every step of the way.
A new threat came in from the opposition: if I pressed on with the lawsuit and lost, Warner Bros. would sue me for their legal fees. Months, perhaps years of legal battles lay ahead, I might end up owing millions of dollars to opposing attorneys, and I’d most likely be forced to sign a nondisclosure agreement. That seemed like the ultimate penalty: enforced silence.
I chose to end my lawsuit and preserve my right to speak.
* * *
What did I learn from my year-and-a-half ordeal? I learned that any writer who sues for intellectual property theft faces impossible odds in the Ninth Circuit. Hollywood studios have bottomless pockets and an army of lawyers and spokesmen to deploy against you. They have threats, rumors, and the media at their disposal. And in their corner is a judiciary that almost always supports its powerful hometown industry.
None of this is fair, but it’s the way of the industry.
First, they feel that awful sense of nausea when they realize their work has been ripped off. Then the feeling of powerlessness…
I’ve learned about other writers’ ordeals in Hollywood, and their experiences are heartbreakingly similar to mine. First, they feel that awful sense of nausea when they realize their work has been ripped off. Then the feeling of powerlessness when they’re told: “No one’s gonna believe you. You’re just a writer.” Then outrage that the studio has not only gotten away with theft, but has also prospered from it. And finally, there’s the sense of helplessness when the writer realizes there’s nothing he can do about it, unless he’s ready to risk his career—and bankruptcy—by suing the studio. In the end, most writers choose not to.
So how can writers protect themselves?
If you’re a screenwriter, author Reed Martin (The Reel Truth) advises copyright registration as well as “watermarking” your screenplay to infuse it “with elements that may serve as clear signposts and help … achieve a threshold of strict similarity needed to go to trial on a copyright claim… One way to do this is to intentionally include throughout each act subtle but extremely specific factual errors that few laypeople would spot.”
(Unfortunately, those precautions won’t help you if a biased judge doesn’t allow your evidence to be presented at trial. Recent failed lawsuits by writers against studios indicate that pre-trial dismissal or summary judgment seems to be the new norm in the Ninth Circuit.)
You should certainly find a talent agent to represent your work and protect your rights. Be selective about whom you deal with, and share your work only with people you trust. There are many wonderful people working in Hollywood. I’ve had a terrific experience working with the producers and showrunners of “Rizzoli & Isles,” who’ve always been quick to credit my novels as the inspiration for the series. I’ve also heard from many industry “good guys” who were appalled by my predicament and quietly gave me moral support.
But there is certainly a dark side to the industry and even the most careful writer may one day find himself a victim of IP theft. If it happens to you, count it as a hard lesson learned in Hollywood, and proof that you’ve written a story worth stealing.
Then get back to your desk and write the next one.
