Something to think about before you submit a story...
~Jade.
By SANDY COHEN, AP Entertainment Writer
Thu Nov 9, 3:29 PM ET
LOS ANGELES - "Pirates of the Caribbean." "The Matrix." "The Last Samurai." "Broken Flowers." "Amistad." Success isn't all these films have in common. Each was also challenged by a lawsuit claiming "idea theft" — a common Hollywood problem that lawyers say is likely to continue as long as huge movie studios wield enormous power.
"It's like having your soul ripped out," says 37-year-old Cleveland resident Jeff Grosso, who paid his way through film school by playing Texas Hold 'Em, wrote a screenplay about it, then sued Miramax over its poker movie "Rounders."
"All they would have had to do was give me a 'story-by' credit," Grosso says. "They could have gotten me for nothing. I could have gone and used that credit to get other work. All I ever wanted to do was write movies."
But why would movie studios, with every resource at their disposal, steal stories? Are these writers just cranks, frustrated wannabes with delusions of creativity?
No, says attorney John Marder, who specializes in representing aggrieved writers. Many are victims of a system that favors studios and networks and offers little protection for writers and ideas.
"It's a small group of people that have all the juice, and if you're not in that crowd, you're really at their mercy," he says. "There's a real lack of moral compass on the issue in Hollywood. And there's an ego-driven arrogance about it, like how dare you challenge this producer, this director, this studio? They'll spend $10 million fighting a case where the demand is $100,000."
Attorney Daniel H. Black, a veteran of Hollywood studios and intellectual-property litigation, acknowledges that studios "have a tremendous amount of leverage."
Are ideas actually stolen? "I guess that's possible," he says, "as (it's) possible that plaintiffs are bringing actions they have no grounds to bring."
Part of the problem is the law. Ideas are not subject to federal copyright protection and, until recently, that was the only legal avenue for relief. Federal law says only the expression of ideas — actual screenplays or treatments — are copyrightable. Therefore a writer would have to prove that a finished film or television show was almost identical to his original screenplay. A studio can get around that by simply tweaking a few details.
But a 2004 decision by the Ninth Circuit Court of Appeals held that when a writer pitches an idea to a production company, an "implied in-fact contract" is created, meaning the writer has a reasonable expectation that he will be paid if the company turns his idea into a product.
Marder won the Ninth Circuit decision in a case brought by Grosso, who studied screenwriting at Malibu's Pepperdine University and spent all of 1995 writing a screenplay called "Shell Game." He mailed the manuscript to "anyone who would take it," including a company that claimed to have a first-look deal with Walt Disney Co. subsidiary Miramax (meaning the studio would have the first opportunity to buy or pass on the project).
Four years later, Grosso sued Miramax, saying it "mined (his) script for the main characters and main story" of the 1998 hit "Rounders." A judge finally dismissed Grosso's claim in July, saying no contract ever existed with Miramax.
Grosso, who published his first novel in February, is appealing. "I'll never get over it," he says.
Then there's the problem of access. A writer has to prove that a studio actually saw his screenplay, which can be tougher than it sounds. In an effort to get their work into Hollywood's hands, unconnected writers often generously pass their screenplays around in search of that elusive "in." Maybe they e-mail their script to their cousin who works at a studio, or give it to a friend's brother who's an agent. Before long, the trail of bread crumbs disappears.
Reed Martin toiled for 10 years on his screenplay "Heart Copy" while teaching movie marketing at Columbia and New York universities. He was a regular at film festivals and traveled often to Los Angeles hoping to make the right contacts. Finally, a talent-agent friend agreed to help him.
A year later, Martin learned his movie was being made. Only he wasn't in on the deal.
He sued Focus Features and filmmaker Jim Jarmusch, claiming that "Broken Flowers" — which won the grand prize at the Cannes Film Festival in 2005 — was based on his work.
"There's so many coincidences that are impossible," says Martin, 37, now a research associate at Harvard Business School.
Martin says he registered every version of his script with the U.S. Copyright Office and the Writer's Guild of America.
"I didn't realize that copyright registration doesn't protect you from being ripped off," he says. "It only gives you standing to sue."
Marder took Martin's case, one of "a 100 or so" brought each year to his firm, Manning and Marder.
"The other 99 we don't represent and no one represents them," Marder says. "Attorneys can't afford to finance them and studios will spend a lot of money, chilling people from bringing lawsuits."
Martin is set to be deposed next month, but he says no amount of relief would be enough.
"It's not like Jim Jarmusch stole my hobby," he says. "I have wrecked my life following this dream."
A representative for Jarmusch would not comment on the case.
Most cases never reach a jury's ears, says attorney Aaron Moss, who specializes in creative-rights law. "The vast, vast, vast majority of these cases tend to settle. There's never an admission of liability. It's settled quietly outside of court."
Usually with a confidentiality clause, Marder notes.
Marder says the Grosso decision and the additional protection it provides for writers will inspire a "fundamental change" in how studios operate, but Black isn't so optimistic.
"I don't really see any end to this," he says. "As long as people in this marketplace are pitching ideas and as long as studios and networks are hearing ideas, there are going to be instances where people feel ripped off."
Writers can protect themselves by coming up with "code names" for their projects and not revealing too many details, Black says. They should retain an agent or a lawyer and make their pitches with that person present. "That keeps people honest," he says.
But it doesn't always work.
Donald Hughes got an agent to represent his autobiographical tale, "Echoes from Clay County," which detailed how he helped his wrongly convicted brother break out of jail. Last month, Hughes sued Fox Broadcasting Co., claiming that after rejecting his manuscript, the company used the idea for its hit series "Prison Break." (Fox had no comment.)
Hughes, 63, says he and his brother have better things to do than file lawsuits: "We're just a couple of old country boys, but when you're right, you're right."
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