Hollywood still not causing end of world for authors

[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 so 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 Gravity and sold the film rights to New Line Productions. She did quite a bit of work on a screenplay, but Hollywood being Hollywood, neither the book nor the screenplay never got made into a film. Or so she thought.

Many years later, director Alfonso Cuarón 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 Cuarón had been attached as director to her killed-in-infancy screenplay. And since Warner Brothers (who produced Cuarón’s Gravity), had purchased New Line in the interim, Gerritsen felt that the Gravity that was produced 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 case in a nutshell: Gerritsen has a contract with New Line. If WB and New Line are separate entities, Gerritsen does not have a contract with WB, and cannot claim that WB breached her contract. If WB and New Line are the same entity, Gerritsen does have a contract with WB, and can claim that WB’s activities breached her contract with New Line.

Make sense?

I’m going to add another wrinkle. 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 Cuarón 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 Cuarón’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 Cuarón’s Gravity.

The thing is, without more, Gerritsen has described an idea: a person in space sees their sanctuary destroyed by satellite debris. Gerritsen was not the first to come up with this idea, and she’s unlikely to be the last. Even if Cuarón was inspired by reading Gerritsen’s screenplay, unless he copied the 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, 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 she 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 did not have a contract with her, in which case they impermissibly infringed on her copyright in her book and screenplay. She gets to win either way.

Gerritsen did 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, Cuarón’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 studio’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 Cuarón’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. WB did not need Gerritsen’s permission to exploit that intellectual property, because–recall–Gerritsen is not claiming that Cuarón’s Gravity infringed on her Gravity. Paramount, for instance, could have produced Cuarón’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 people whose rights have not been infringed. I can’t imagine why any Hollywood studio would have an incentive 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. And I’m going to suggest that we should wait to be alarmed by Hollywood’s 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.]

9 thoughts on “Hollywood still not causing end of world for authors

  1. Thanks for sharing your perspective on this. Quite an eye opener compared to the discussion on The Passive Voice site of a few days ago: http://www.thepassivevoice.com/page/2/ (page number likely to change from 1/31/15 original date).

    Is “colorable” a word like “inflammable” and “sanction,” that can have opposing meanings? I checked several legal dictionary sites, and that was the only conclusion I could draw.

  2. I retweeted Garritsen’s tweet about her blog post, but even as I read it, something was nagging at me about it. She’d spoken at my grad school one year, but I remember being particularly fried that day. Sometimes, I favorite or retweet things just to find them again….

    It wasn’t until your post that it clicked: she writes medical thrillers. Sadly, the medical part doesn’t always translate well to screen, and Cuarón may well have felt that only the visual ideas—his original directorial riffs, meaning what he saw when he read the script—off of her piece may have been the work he wanted to do.

    It was a stunning, amazing, film, and I’m glad it was made. Definitely my favorite SF/F film in a few years (since Inception).

  3. Courtney, I am unable to sue for copyright infringement because I do not own the film rights. New Line Productions does, because I sold them the rights, but with stipulations. The only entity who could legally sue for infringement is the owner of those film rights, which is New Line — and they would have to sue their parent company Warner Bros. Which of course they will never do. Thus we were forced to sue for breach of contract, which is the only option open to me.

    Do you see how this leaves an author with absolutely no remedy, since WB can indeed use intellectual property owned by New Line, and can get away with it, because New Line will never be in opposition to its parent company?

  4. @tess gerritsen:

    Tess, thank you for your comment. I’ve edited the post above to reflect that this definitely does change how I think about things, and I apologize. At this point, I’ve convinced myself that I was wrong, that I made an unwitting assumption walking in that I shouldn’t have, and that the end result was that I was unfair to you and owe you an apology for calling you an alarmist. I’m sorry about that.

    I need a little more time to process a full edit, but wanted to put this here while I was processing.

  5. Thanks, Courtney. I have been silent about the process up till now, but Warner Bros. has spread so much misinformation that I felt compelled to finally make a statement. They keep bringing up my 2013 quote that “the movie is not based on my book,” without showing the context in which I made that statement — before I knew of Cuaron’s attachment, and with a reporter asking about it. At that time I could have been sued if I had said it WAS based on my book, because I would have been publicly accusing Cuaron of IP theft, without any evidence on my side. And the ironic part is, they pulled it from an article where I was addressing an audience who were all convinced the movie WAS based on the book. They all saw the similarities and were astonished they were merely coincidental.

  6. So then, without knowing more about IP law my question would be, what recourse does an author have if they have sold the rights to a work to a bad actor that refuses to sue for infringement but also claim to be honoring the original contract? I can understand in this case attempting to link Warner though the original contract, but in a more general sense, would an author be able to do anything if a party that has the rights knowingly allows them to be infringed upon?

  7. Wow, Ms. Garritsen, I’m so sorry for what’s happened. I have meant to read your books ever since I saw you speak at Seton Hill, and I just hadn’t gotten to them yet. I’ve just bought a copy of (your book) Gravity to help rectify that.

  8. I haven’t looked into the details of this case but what I did read reminded me of Art Buchwald v. Paramount over Coming to America with Eddie Murphy. That case settled out of court after Buchwald prevailed before the judge and Paramount appealed it.

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