Gravity Lawsuit: Why I am giving up

(For background on my lawsuit, please read my January 31st blogpost.)

Despite my legal team’s best efforts to demonstrate unity of interest between Warner Bros. and its subsidiary New Line, the court has ruled twice that Warner Bros. need not honor and is not responsible for New Line’s contractual obligations to me. The court also dismissed my Breach of Continuing Guaranty claim against New Line.

We were not given the opportunity to present our arguments in person. We were not allowed to go to discovery, so we have no access to corporate documents which might shed light on the relationship between Warner Bros. and New Line. The judge’s decision states: “Most fundamentally, 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.” That we are required to prove that a corporation intends to assume unwanted liabilities is just one example of the hurdles we face in this court.

I am also unable to sue for copyright infringement, as my Gravity film rights are still held by New Line — which is under the control of Warner Bros.

This ruling leaves absolutely no remedy for a writer in my situation. Based on the court’s most recent decision, in which it went so far as to make the extraordinary statement that it finds no inequity in this situation, I have no faith in the system or that my case will ever be heard by a jury. The brutal financial and emotional costs of continuing the fight for years to come, against adversaries who have unlimited resources and are willing to use them against me, and the unlikelihood that we will ever be allowed in this courtroom to present our evidence, have made me decide to end my efforts.

I thank my legal team of Glen Kulik, Natalie Mutz and Patricia Brum (Kulik Gottesman & Siegel) for their dedicated work on my behalf. From the start, they believed strongly in this case. They continue to believe in this case and were eager to fight on. This decision is mine alone.

When I sold the Gravity film rights to New Line, my contract included a standard Assignment Provision:

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.

 It also 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.

Even those robust provisions in my contract did not protect me when New Line was absorbed into Warner Bros. In this era of endless studio mergers and acquisitions, how can we writers protect ourselves from those who purchase our intellectual property rights and make promises but later voice no objection when their parent companies or affiliates take control and circumvent those promises? I’m afraid the answer from this court is clear: we cannot.

 

Addendum:  Many commenters have questioned the existence of the 14-page rewrite I did of the GRAVITY script in 2000.  I still have the original hard copy of those pages, written in 2000, in which I depicted the shooting down of a satellite, the satellite debris colliding with the International Space Station, and the heroine/astronaut left adrift in her space suit, untethered.  I also have the 2000 cover letter accompanying those pages, which I faxed to Artists Management Group/ Artists Production Group — the production company that worked with New Line to produce my Gravity project.  Those pages were shared with Warner Bros. attorneys early in my lawsuit.  WB is fully aware the physical pages are still in my possession.  I was ready to submit those pages for forensic testing, to establish the age of the pages, which are now about 15 years old.

 

 

 

 

Gravity lawsuit update

(For background on my Gravity lawsuit, read my January 31 blogpost)

For a second time, the court has concluded I have not stated a viable claim for breach of contract against Warner Bros. or New Line. My 1999 contract with New Line Productions guaranteed me “based upon” credit, a production bonus, and back-end profits if a motion picture is ever made based on my novel Gravity, which is about a female astronaut trapped aboard the International Space Station after the rest of her crew is killed.  Warner Bros. acquired New Line in 2008 and owns and controls its assets, including the film rights to my novel Gravity. Despite our arguments that the two companies are inextricably bound together, the court ruled that Warner Bros. is not liable for New Line’s contractual obligations to me.

Nor can I sue for copyright infringement, as my Gravity film rights are owned by New Line. The only entity with the legal standing to sue for copyright infringement is New Line – and they will certainly not sue their parent company, Warner Bros.

This ruling allows me no possibility of remedy.  Even if the Warner Bros.’s film had copied my story word for word, there would be nothing I could do about it.

The court’s latest decision focused solely on the Warner Bros./ New Line corporate relationship.   It did not take into consideration my novel or Cuaron’s film or the similarities between them.

It did not address my third-act rewrite of Michael Goldenberg’s Gravity script, in which I depicted satellite debris colliding with the International Space Station, the destruction of ISS, and the sole surviving female astronaut adrift in her EVA suit.

It did not address our evidence that Alfonso Cuaron was attached to direct my Gravity project in 2000, or the fact there were executives involved with both my Gravity project and Cuaron’s film.

The ruling was made without affording my attorneys any opportunity for oral argument. We were never given an opportunity for discovery.  We have been stopped at the courthouse door, unable to present the evidence we’ve amassed about the direct development links between my novel Gravity and Cuaron’s film Gravity.

The court has again granted me the opportunity to file an amended complaint, for which I am grateful. I am not by nature a crusader, but the consequences of this ruling could be devastating to all writers working in any media, including film, television, and publishing.

As one entertainment attorney (unconnected with my lawsuit) observed:

What is troubling about this case is that Gerritsen … attempted to protect herself through not only a standard assignment provision, but also required that New Line execute and deliver a Continuing Guaranty in which it guaranteed the “full and faithful performance” by Katja of all of Katja’s obligations under the Contract.Despite these precautions, “by virtue of a written agreement dated January 1, 2010, all intellectual property acquired by New Line at any time (in perpetuity) is deemed to be automatically transferred to and owned by WB. WB paid no consideration to New Line for entering into this agreement, nor is WB obligated to pay any consideration in the future when intellectual property rights are acquired by New Line and automatically assigned to WB. The express purpose of this agreement “is solely to vest in WB the benefits of specific rights-related provisions of Content Agreements” and per the agreement, “WB assumes no obligations under such . . . Agreements.”

With Sony, Dream Works Animation, Lions Gate, and MGMjust a few of the possible players currently looking to acquire or be acquired, the ‘gravity’ of this situation should not be overlooked or downplayed.