(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.
(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.
Those of us who make our living as writers know the basics of storytelling: plot, character, conflict, build-up, crisis, resolution. With those tools in our kit, we can tackle any project. So telling a story that just happens to be set in space should be a piece of cake. Just move your usual characters onto a spacecraft or space station, pit them against an antagonist, and churn out your story. Easy, right?
Well, maybe if you’re writing a space opera in which real science and technology takes a back seat. In space opera, a writer’s only limit is his imagination. Space stations with artificial gravity? No problem. Spacecraft that travel at warp speed? No problem. Transporters and death rays? Old hat. Readers aren’t going to question the technology because they understand it’s all speculative. Readers are willing to suspend disbelief and accept that the Starship Enterprise and the Millennium Falcon are possible because they understand that technology isn’t the point. The story is, and any writer can tell a story.
But what if you are writing a space story set in the present or near future, a story told within the confines of real science, and your story is about the technology? That challenge requires far more than just a writer’s imagination; it requires a working knowledge of what’s possible and what’s not. Suddenly you’re not just writing a story — you’re also writing about, and translating, science. This is something you don’t pick up by just surfing the internet. It requires months, if not years, of specific research. Even with my advanced degree in science, the prospect was more than just daunting — it was frightening.
But that was precisely my challenge a decade and a half ago, when I wrote my book GRAVITY. In a 1999 interview with Barnes and Noble, I described how I approached the research. Here’s an excerpt from that interview:
Barnes & Noble.com: Tess, thanks for taking the time to share with us some of your thoughts and experiences with regard to your latest thriller, Gravity. The concept you’ve created here is both fascinating and horrifying and utilizes science from the fields of molecular biology, virology, medical technology, space exploration, and marine biology, to name a few. It appears you’ve done a great deal of homework researching both the facts and the possibilities. Without giving away the true horror behind the menace in Gravity, can you speculate on just how feasible the scenario you created might be in real life?
Tess Gerritsen: When I wrote Gravity, my No. 1 goal was to create a scenario that was completely plausible. With that in mind, I made certain that everything that goes wrong aboard the space station actually could go wrong in real life, from the escape of the organism into the space station’s air to the series of disasters that befall the station and later the orbiter, to the political crisis that envelops NASA as a result…
The details about NASA, the shuttle, and the space station were all based on months of research and conversations with NASA sources. The space station in Gravity is based on the blueprints of the actual International Space Station, which is now being launched in increments. The details about environmental control, orbital docking, commercial rockets, EVA’s are all based on fact. The book has since been read by a NASA engineer and a flight surgeon, and both of them have told me how amazed they are that I managed to get it right. As the engineer said about my scenes in Mission Control, “I’ve been there, done that, and that’s how it is!”
bn.com: It’s certainly effective! You’ve combined some very graphic horror — such as dead bodies, blood and guts, and a few hair-raising descriptions of some pretty nasty ways to die — with cerebral horrors like the anticipation of certain death, isolation, loneliness, helplessness, and fighting an enemy one can neither see nor understand. So what scares Tess Gerritsen?
TG: Airplanes! Heights! I’m definitely a land-based humanoid.
bn.com: Several of the characters in Gravity have had a lifelong dream of becoming an astronaut and traveling the stars. Would you go to space if you were given the chance?
TG: Okay, I confess. Despite my fear of heights, I wanted to be an astronaut! I think most of us have had that dream, especially those of us who spent many happy hours as children watching Star Trek… I can also say that the risks would make me think long and hard about it. Space is not a place for amateurs and certainly not a place for starry-eyed novelists. It takes training and skills to be an astronaut. To say that anyone can just strap himself or herself in and lift off is like saying anyone can perform brain surgery in ten easy lessons. Space travel, as it now exists, is a job for professionals.
bn.com: By placing a lot of your action on a space station where help and rescue are days away, escape is impossible, and the lack of gravity adds a new layer of terror to some of the more graphic scenes, you add a whole new dimension to the “ordinary” horrors of medicine and science run amok. Where did you get the idea to combine all these elements?
TG: I’ve always been fascinated by the space program. I vividly recall hearing the broadcast of Neil Armstrong taking his first steps on the moon, and even now, just thinking about that moment can still bring tears to my eyes. Then, about two years ago, I was traveling in Europe when I heard news about the collision between Progress and Mir. I remember thinking: Three men are about to die up there. And it occurred to me that that must be the ultimate horror, to be facing the prospect of your own death, trapped in space, while the whole world can follow the final moments of your life. With more research came more elements of horror: What is it like to die of explosive decompression? How do you deal with a medical emergency in weightlessness? What happens to blood as it pours out of an exsanguinating body in a space station? Earthbound horrors are magnified in the hostile environment of space.
bn.com: They certainly are! Your descriptions of the way things behave in a weightless environment (some of them things we wouldn’t want to encounter in any environment!) were very vivid and often quite spooky. What sort of research did you do to create those scenes?
TG: I read everything there was to read about life in microgravity. I read astronauts’ accounts, NASA reports, space medicine textbooks. I combed research publications about microbial and tissue culture behavior in space. I spoke to flight surgeons about emergency medicine in orbit. After a while, I actually began to dream about weightlessness (those were amazing dreams, too!), and when writing a scene that takes place aboard the station, it became second nature to me to envision everything without gravity. After I finished the book, it took months for those dreams of weightlessness to go away.
bn.com: Obviously there was a lot of hard work and lengthy research that went into the writing of this book. What parts of the writing process were the most fun? And which parts were the most drudgery?
TG: The research for Gravity was absolutely the most fun part of creating the story. Since I have such a deep interest in the space program, digging into the details of NASA was like playtime for me. Getting the inside tour of Mission Control, having the chance to talk to people at Johnson Space Center — these are the sorts of experiences that remind me how lucky I am to be a writer!
For those of you who are interested in science-y novels like GRAVITY, I can recommend a particularly fun book that recently came out: THE MARTIAN, by Andy Weir. While it is speculative (it’s set in the future, when we have manned missions to Mars) and it proposes certain technological advances, all those advances are theoretically possible, and the research that went into Weir’s storytelling shines through on every page.
On Thursday, my attorney Glen Kulik filed our amended complaint. A day later, the news appeared in the Hollywood Reporter, which helpfully posted the entire 25-page complaint on their site. If you’re a lawyer or a budding lawyer, you may find the document interesting. It explains in detail the reason why I am suing, why I am unable to file for copyright infringement, and why a breach of contract complaint is the only option open to writers in my situation.
To read more, visit The Hollywood Reporter site.
An interview with the Boston Globe.
Interview for Kindle Most Wanted
Attorney Justin Jacobson (who has absolutely nothing to do with my case) blogs about the glaring errors perpetuated by major news outlets regarding the Gravity Lawsuit. UK Guardian comes in for a particular whack on the head for journalistic malpractice:
“Which leads me to the third, and most distressing, factor: poor reporting. The headline on the Guardian article I linked to above reads, “Judge downs Gravity lawsuit from bestselling author Tess Gerritsen”. That’s just flat-out false. The article is rife with error. And this is a major news outlet, not some random guy with tumblr. Even a cursory conversation with an attorney could have minimized those errors (but perhaps also the number of clicks, natch).”
He gives me a slap on the hand as well, for prematurely declaring my lawsuit in critical condition when it’s really still alive and kicking. But hey, when all the news headlines are shouting that I’ve already lost my case, it’s hard not to feel pessimistic.
Perhaps reporters might consider doing more work than merely cutting and pasting corporate press releases and passing them off as journalism.