A screenwriter friend of mine, currently involved in a copyright infringement lawsuit against a studio, recently sent me this article written by Steven T. Lowe, a Los Angeles entertainment attorney. It’s a pretty depressing piece. Mr. Lowe explains why writers who’ve had their stories stolen by movie studios face impossible odds finding justice in the courts. Instead of allowing these cases to reach a jury, more and more judges are single-handedly deciding the matter of similarity between stories, and are not even considering the testimony of plaintiffs’ experts.
One of the more astonishing cases Mr. Lowe cites involved the motion picture The Last Samurai. In the late 1990s, established screenwriters Matthew and Aaron Benay, through their literary agent, submitted a screenplay called The Last Samurai to a production company called Bedford Falls. Their screenplay was “about an American war veteran going to Japan to help the Imperial Army by training it in the methods of modern Western warfare for its fight against a samurai uprising.” The producers passed on the project. Years later, the principles of that production company made their film The Last Samurai with a “near-identical (and quite unusual) historical premise with numerous other uncanny commonalities” including shared historical inaccuracies. The Benays sued for copyright infringement and breach of an implied-in-fact contract.
When a writer with as strong a case as the Benays’ can’t find justice, what is going on? Mr. Lowe explains the odds against writers:
“In over 50 such copyright infringement cases against studios and networks decided by courts in the Second and Ninth Circuits between 1990 and 2010, every final decision handed down was in favor of the defendants.”
He also observes: “The determination of each case now rests almost entirely in the unfettered discretion of trial judges, who have consistently dismissed plaintiffs’ claims… While the courts may believe that sheltering studios from suit helps prevent the stifling of their artistic expression, stripping authors of virtually any hope of prevailing on infringement claims is just as chilling to the arts as making it too easy to assert those claims.”
So that’s how it stands for writers today. Even if you can prove earlier access by the producer (as my screenwriter friend did in his lawsuit), even when the two properties have essentially identical titles and uncannily similar plots, the studios will still defeat you. What’s the solution for writers?
I’m sad to say, I don’t think there is one.
This appears in Publishers Weekly (August 7)
It may be something small, but it’s enough to scare you: you misplace your car keys, or you can’t remember the name of the movie you saw last week. Or your mind suddenly goes blank as you try to retrieve a word that hovers maddeningly out of reach. And you think, that’s it, I’m getting Alzheimer’s disease. While most people of a certain age have probably experienced that stab of anxiety, I’m particularly fearful. My father died with Alzheimer’s.
I say he died with it, not of it, because one can live with Alzheimer’s for years until some other illness—a heart attack, a stroke—mercifully ends the agony. For two decades, Alzheimer’s ate away at the man who was once my father, robbing him of speech, leaving him mute through a long, grim twilight.
As a writer, I’m particularly horrified by the prospect of words, the tools of my trade, slipping away from me. Like many of my friends, I’m trying to avoid the disease by staying physically fit and mentally active, but Alzheimer’s remains the only cause of death in the U.S.’s top 10 that can be neither prevented nor cured. It costs the U.S. $226 billion to care for our current five million Alzheimer’s patients, and by 2050, it’s projected that Alzheimer’s will cost our nation a trillion dollars. It destroys many more American lives than terrorism in this country ever has. Isn’t it time we declared war on this devastating enemy?
This war won’t be fought on battlefields but in research facilities, and our soldiers will be scientists. As a medical doctor, I’ve witnessed dramatic changes in medicine over the decades, and I’m certain that a cure for Alzheimer’s is within reach. In 2013, to help fund that research, I began my War on Alzheimer’s fund drive. I chose to work with the nonprofit Scripps Research Institute, an internationally known leader in basic biomedical research, because I knew the money would go straight to their Alzheimer’s research program.
I had noticed the importance of small donations to political campaigns, and I thought that same strategy might work for my campaign. Every $5 given to my cause (managed through GoFundMe) automatically placed the donor in a random drawing for various prizes, including autographed copies of my books; Rizzoli & Isles T-shirts, hats, and DVDs; and two grand prizes: the chance to name a character in my next Rizzoli & Isles novel. The more money you donated, the more chances you had at a prize. I pledged to match donations up to $25,000.
We raised over $50,000 in that first drive two years ago. My campaign wasn’t just about raising money; it was also about sharing personal stories of loved ones we’d lost to Alzheimer’s. On my campaign’s tribute page, donors wrote about their once-vibrant mothers and fathers who had faded into oblivion, just as my own father had. They posted photos and shared their fears that they too would one day succumb. They found comfort in knowing that they were not alone.
When I contacted the two grand-prize winners to ask which names they wanted as characters in my novel, one winner said, “Please use the name of my late mother. She died of Alzheimer’s, and I want to see her live again.”
This, I felt, was a sacred assignment. The character had to be worthy of his mother’s name, someone who wouldn’t simply walk on the page and walk off again. Someone who would have an adventure of her own and would live to tell the tale. And so Millie Jacobson, named after a woman who died of Alzheimer’s, made her entrance on the very first page of Die Again. Stranded in the African bush, Millie falls in love, fights for her life, and nearly loses her sanity. She emerges triumphant, a scrappy survivor who helps Jane Rizzoli catch a killer. Alzheimer’s disease may have killed her namesake, but this Millie Jacobson would live on.
Millie’s fictional adventure may be over, but my War on Alzheimer’s will continue until there’s a cure. I’ve already launched a second fund-raiser on GoFundMe, and once again, two winning donors will have a chance to name a character in my next Rizzoli and Isles novel. I hope other authors will join the fight for more Alzheimer’s research dollars by spreading the word, or by launching their own fund-raisers. There are a number of excellent biomedical research institutes around the country, and they can all use our support. Words are the tools of our trade. Let’s use them now to fund a cure, so those words won’t slip away from us forever.
If you would like to donate — and maybe win the chance to appear in a Rizzoli & Isles novel — visit my GoFundMe page.
Publishers Weekly has not always been kind to me. So happy to see that they like PLAYING WITH FIRE:
On a trip to Rome, violinist Julia Ansdell, the narrator of this haunting standalone from bestseller Gerritsen (The Bone Garden), buys an old music book titled Gypsy from an antique shop. Inside the book, on a loose sheet of paper, is a handwritten waltz, Incendio, by one L. Todesco. Back home in Boston, Julia plays Incendio on her violin, but doing so appears to set off a series of calamities, starting with the death of the family cat, that upset her relationships with her husband, Rob, and their three-year-old daughter, Lily. Julia subsequently travels to Venice, to try to learn more about the music and its Jewish composer, Lorenzo Todesco. Flashbacks spanning 1938 to 1944 chronicle Lorenzo’s tragic story, in particular his romance with Catholic Laura Balboni, as the Fascist regime’s ever harsher anti-Semitic laws tear families and friends apart. Gerritsen movingly depicts Julia’s search, which has some surprising repercussions and builds to a satisfying crescendo.
I’m looking through my late father’s old photos this weekend, and I came across this one of him in Germany, where he served in the US Army during WWII. He appears to be wearing an MP armband. I don’t recall him ever telling me he worked as an MP. There are so many things he never told me about his life, and I’m sad that now I’ll never know, except through his old photos and documents. All the memories he could have shared with me were stolen from him long before he died.
He had Alzheimer’s Disease.
I watch many of my friends now struggling to care for aging parents with Alzheimer’s. I look at the emotional and economic devastation it has wrought on families and on our country as a whole. Over 5 million Americans are now afflicted with Alzheimer’s and by 2025, that number will probably grow to 7 million. By 2050, unless we find a cure, we will be spending over a trillion dollars caring for these patients. This is a disaster rolling toward us, yet our country doesn’t seem mobilized to fight an enemy that at this very moment is killing our loved ones, and is poised to take down my generation next.
As a doctor, I’ve watched how medical science has made enormous improvements in our lives over the last decades. Peptic ulcers, once treated with major surgery, are now cured with a simple course of antibiotics. Timely interventional medicine can now prevent strokes and heart attacks. Medical science has made great strides just during my career, and there’s no reason researchers can’t find a cure for Alzheimer’s. We just need the determination — and the funds — to support our scientists.
That’s why I launched my War on Alzheimer’s a few years ago. I urged my readers to donate to the Scripps Research Institute, internationally known for its biomedical research. Donations would go directly to their Alzheimer’s scientists. To encourage donations, I offered the chance at two grand prizes: the chance to name a character in my next Rizzoli & Isles novel. As little as $5 would enter you into a random drawing to see your name — or the name of a loved one — as a character in my book. I promised to personally match up to $25,000. We raised over $50,000. And the two winning names were characters who worked with Jane and Maura to catch a killer in DIE AGAIN.
The War on Alzheimer’s is an ongoing one, and it’s not over until we find a cure. So I’m doing another fundraiser with my next Rizzoli & Isles book. If someone you love suffers from Alzheimer’s, then you know how high the stakes are. Please join me by spreading the word, and by donating to this vital research. As little as $5 will give you a chance to name a character who might help solve a case — or be a killer!
To donate, visit my GoFundMe page. Let’s fight this war — and win it together.
And if you’re on Twitter, tweet a photo of a loved one before he or she came down with Alzheimer’s. Let’s not forget who they were before. (#BeforeAlzheimers)
It’s always scary sending out a new book for review. You never know if critics will praise it or blast it. The first review for my upcoming novel PLAYING WITH FIRE has just come in, and it’s a lovely one:
PLAYING WITH FIRE [STARRED REVIEW!]
Author: Tess Gerritsen
Review Issue Date: September 1, 2015
Online Publish Date: July 28, 2015
Publication Date: October 27, 2015
ISBN ( Hardcover ): 978-1-101-88434-8
ISBN ( e-book ): 978-1101-88435-5
A suspenseful thriller about mysterious music and a violinist’s fear of her child. Julia Ansdell is a violinist with a 3-year-old daughter, Lily. While in Italy, Julia buys an old piece of sheet music titled Incendio by an L. Todesco, whom she’s never heard of. When she plays the composition at home in the U.S., Lily appears to go crazy, killing their cat, stabbing Julia in the leg with a shard of glass, and causing her to fall down a flight of stairs. Does the music possess an evil quality? Or does the problem lie within Julia herself, as her husband, Rob, thinks? “I know how absurd I sound,” she says, “claiming that a 3-year-old plotted to kill me.” Afraid Rob wants her committed, she flies to Italy to try to learn more about the music’s origin. In a parallel story, Lorenzo Todesco is a young violinist in 1940s Italy. He practices for a duet competition with 17-year-old cellist Laura Balboni. They play beautifully together and know they will win—perhaps they’ll even marry one day. But this is Mussolini’s Italy, and a brutal war is on. As the plotlines converge, people die, and Julia places herself and others in mortal danger. In fact, the stakes are even higher than she knows. A friend tells Julia, “The seasons don’t care how many corpses lie rotting in the fields; the flowers will still bloom.” This stand-alone novel has no bearing on the author’s Rizzoli & Isles series, but the crafting is equally masterful. For example, the musical descriptions are perfect: “The melody twists and turns, jarred by accidentals.…I feel as if my bow takes off on its own, that it’s moving as if bewitched and I’m just struggling to hang on to it.” Clear your schedule for this one—you won’t want to put it down until you’re finished.
Exciting announcement to come about my musical collaboration with the internationally acclaimed violinist who’s recording the piece “Incendio,” which I composed. PLAYING WITH FIRE is about a haunting waltz — and you’ll be able to hear that waltz. The music will be available on iTunes.
(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.
(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.
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.
DIE AGAIN is a STRAND MAGAZINE Critics’ Award nominee for best novel of 2014. From their press release:
The Strand has announced its nominees for the 2014 Strand Magazine Critics Awards. Recognizing excellence in the field of mystery fiction, the Critics Awards were judged by a select group of book critics and journalists from news venues such as LA Times, Chicago Tribune, Time, CNN and The Boston Globe.
Laura Lippman has received her third critics award nomination and took home the prize in 2007 for WHAT THE DEAD KNOW. Other nominees include Tess Gerritsen, Tana French, and Lisa Gardner.
The full list of nominees:
1. The Fever by Megan Abbott (Little, Brown and Company)
2. Jack of Spies by David Downing (SOHO)
3. The Secret Place by Tana French (Viking)
4. Fear Nothing by Lisa Gardner (Dutton)
5. Die Again by Tess Gerritsen (Ballantine)
6. After I’m Gone by Laura Lippman (William Morrow)
Such an honor to be included on the same list with these amazing authors!
I’m always a little anxious when I get an email from my editor with “proposed cover” in the subject line. Will I love it? Hate it? Will I have to convince them to go back to the drawing board?
Last week, when I opened the file and beheld this gorgeous cover, I actually gave a sigh of sheer happiness. It’s exactly what I was hoping for, capturing both the timeless and historic nature of my new novel, which is two stories woven in one. One story takes place in current-day Boston, where a lovely violinist is desperate to learn the history of a mysterious piece of music she purchased in a Rome antique store. Every time she plays “Incendio,” her 3-year-old daughter does something violent. Now the woman’s afraid of her own child because she thinks her daughter has transformed into someone else. Someone terrifying. And the music seems to be key.
The second story is told in parallel and set in 1940’s Venice, where a young composer and a beautiful cellist fall in love — only to find their future threatened as the SS seizes control of northern Italy.
Seventy years later, the composer’s waltz “Incendio” will change lives — and alter the course of history.
PLAYING WITH FIRE will go on sale in the US on October 27.
Looking through my old files, I came across this headline 1999 article on the front page of VARIETY. I remember my excitement at the time, the enthusiasm of everyone involved, and all the assurances that GRAVITY was going to be a huge movie.
Now, 16 years later, I think back to the advice I once got from a screenwriting friend: “Hollywood will break your heart.”
NEW LINE IN ORBIT WITH AMG ON PIC
New Line has made an outright purchase of the feature film rights to bestselling novelist Tess Gerritsen’s upcoming spacebound medical thriller/love story, “Gravity,” with $1 million up front for the scribe and another $500,000 once the film is produced.
Artists Management Group, the 3-month-old management-production company whose partners are Michael Ovitz, Rick Yorn and Julie Silverman-Yorn, will produce the pic, although the firm’s deal is not yet finalized.
While no writer is attached yet, New Line and AMG view “Gravity” as a major event pic and look to move quickly to put a scribe and all the other elements in place, with an eye toward releasing the film in the summer of 2000 or 2001.
Packaging with home team
AMG will likely package the project with as many of the banner’s clients as possible; Rick Yorn told Daily Variety that he expects to have most of the major above-the-line talent in place within the coming weeks.
The “Gravity” manuscript was brought to Yorn’s and AMG production topper Cathy Schulman’s attention Tuesday by the Renaissance Agency’s Joel Gotler, who brokered the deal on behalf of Gerritsen’s Gotham lit agent, Meg Ruley of the Jane Rotrosen Agency…
At New Line, prexy of production Michael De Luca read the galley, which De Luca describes as “a story with a really good central rooting character and with great commercial potential.”
De Luca then made a preemptive bid to secure the project late Wednesday. He and New Line VP of production Donna Langley will oversee development of the project for the studio.