[EDIT, 2/3 @7:24 AM: In light of Tess Gerritsen’s comment below, I’m not willing to stand by this any longer. I’ll make a few notes in the text as to why.]
Standard disclaimer: This is my own opinion, and not the opinion of any other organization.
Tess Gerritsen has a blog post out explaining why every author who sells to Hollywood or wants to do soÂ should be up in arms about the dismissal of her complaint. Here’s why I’m not raising my arms into anything more than a shrug.
To recap, for those who haven’t heard and don’t know what is going on: Tess Gerritsen wrote a book called GravityÂ and sold the film rights to New Line Productions. She did quite a bit ofÂ work on a screenplay, but Hollywood being Hollywood, neither theÂ book nor the screenplay never got made into a film. Or so she thought.
Many years later, director Alfonso CuarÃ³n wrote a screenplay about an astronaut who was set adrift in space. This movie, also called Gravity, made a ton of money and received many accolades. Tess Gerritsen was asked how she felt about it, and basically said that the similarities were likely coincidental.
Later, however, she learned that CuarÃ³n had been attached as director to her killed-in-infancy screenplay. And since Warner Brothers (who produced CuarÃ³n’s Gravity), had purchased New Line in the interim, Gerritsen felt that the Gravity that was producedÂ was her Gravity, and she was entitled to compensation under the contract. So she sued.
The district judge dismissed her complaint, claiming essentially (and here I’m skimming over a TON of corporate law that I do not care to rehash) that WB and New Line were separate entities, notwithstanding the fact that WB had purchased New Line.
Here’s the caseÂ in a nutshell: Gerritsen has a contract with New Line.Â If WB and New Line are separate entities, Gerritsen does not have a contract with WB, and cannot claim that WB breached her contract.Â If WB and New Line are theÂ same entity, Gerritsen does have a contract with WB, andÂ can claim that WB’s activities breached her contract with New Line.
I’m going to add another wrinkle.Â Gerritsen says the following:
Please note: this is not a case of copyright infringement. Warner Bros., through its ownership of New Line, also controls the film rights to my book.
I’m going to ask a question: Why isn’t this a case of copyright infringement? No, really. Why isn’t it one?
[Edit, 2/3 @7:25 AM: There is a much better answer to this question than what I originally said, which Gerritsen provides in the comments below: It’s not a case of copyright infringement because, having transferred this particular exclusive right to New Line, she no longer has standing to sue for copyright infringement. I’m leaving the original text up because I don’t believe in deleting my mistakes, but I will strike through as of this AM. Having not read either the book or Gerritsen’s screenplay, and not knowing how much CuarÃ³n had access to, I’m not willing to judge whether there would hypothetically have been a case of infringement. Since she can’t bring one, it would be unreasonable for me to infer that there wouldn’t have been one from the lack of such a suit.
Mea culpa: I was importing my understanding of how a suit would work from how book contracts work, where I essentially license my rights to a publisher but retain enough of an interest in the copyright where I could sue. It shouldn’t have come to me as a surprise that Hollywood takes more rights, but I honestly didn’t consider that possibility. That’s my bad.]
The premise of Gerritsen’s book is an outbreak of a deadly virus in space, something that is not present in CuarÃ³n’s film. Gerritsen says that she wrote a scene for the screenplay in which the international space station was destroyed by satellite debris, something that also happens in CuarÃ³n’s Gravity. The thing is, without more, Gerritsen has described anÂ idea: a person in space sees their sanctuary destroyed by satellite debris. Gerritsen was not the first to comeÂ up with this idea, and she’s unlikely to be the last. Even if CuarÃ³nÂ was inspired by reading Gerritsen’s screenplay, unless he copied theÂ expression of her idea, rather than just the idea itself, he would owe her absolutely nothing. That’s how our copyright law works. We get to see other people do things and say, “Ooh, good idea,” and do our own execution of it. If we had any other rule,Â we would all get sued. We all, to some extent, get ideas from the world around us. So although Gerritsen does not say this, I suspect that there is a darned good reason that Gerritsen did not plead copyright infringement: Because she would not have a colorable case of infringement. If sheÂ had a colorable case, she would (or at least should) have plead infringement in the alternative: Either WB had a contract with her and they breached it; or they didÂ not have a contract with her, in which caseÂ they impermissibly infringed on her copyright in her book and screenplay. She gets to win either way. Gerritsen didÂ not plead infringement in the alternative, and since she appears to have lawyers who are competent in every other respect, I’m going to guess that this means that she was told that in the absence of a contract, CuarÃ³n’s movie would not have infringed on her copyright. Based on what I’ve seen (which without a direct screenplay-to-screenplay comparison is very little), that’s probably right.
If that’s the case, then this line in Gerritsen’s blogpost strikes me as remarkably alarmist:
It [the district court’s decision] means that any parent film company who acquires a studio, and also acquires that studioâ€™s intellectual properties, can exploit those properties without having to acknowledge or compensate the original authors.
It’s actually a lot simpler than that.
If CuarÃ³n’s Gravity does not infringe on Gerritsen’s Gravity, WB had absolutely no need to acquire New Line in the first place to get access to Gerritsen’s intellectual property.Â WBÂ did not need Gerritsen’sÂ permission to exploit that intellectual property, because–recall–Gerritsen is not claiming that CuarÃ³n’s Gravity infringed on her Gravity. Paramount, for instance, could have produced CuarÃ³n’s Gravity. It would not have needed to acquire New Line to do it.
I am just not alarmed by the prospect of a Hollywood studio making a bunch of movies that it is legally allowed to make without compensating peopleÂ whose rights have not been infringed. I can’t imagine why any Hollywood studio would have an incentiveÂ to go and buy other studios just so that it could make movies that it’s legally allowed to make without buying those other studios in the first place. AndÂ I’m going to suggest that we shouldÂ wait toÂ be alarmed by Hollywood’sÂ unauthorized exploitation of intellectual property rights until we have a case where the artist is actually claiming that Hollywood exploited their intellectual property without authorization.
[Edit, 2/3 at 7:29 AM: Once again, I’m not going to stand by this conclusion. I will probably revamp and rethink. Maybe we should be alarmed. But I need a little more time to process, so I may not have my full reaction up until tonight.]