The difference between “breach of contract” and “copyright infringement”

Thanks to my Gravity lawsuit, I’ve been getting a smash course in the law, and one concept that seems to generate a lot of confusion for lay people is the difference between a “breach of contract” and “copyright infringement” lawsuit. Before this happened to me, I didn’t know the difference between the two. I’ve never been involved in a lawsuit before, and did not expect I ever would be. So to be suddenly stuck in the middle of one feels like being trapped on an alien planet. But I’ve learned how vital this concept is.

Many of you believe that for a novelist to win a lawsuit against Hollywood, he must prove that his book and the disputed film are so similar as to be considered nearly identical. And the truth is, copyright infringement cases DO require substantial similarities between the two, a standard that is very hard to meet, which is why the vast majority of copyright infringement cases fail. They’re almost unwinnable — even if you can prove access. So if you are a novelist considering suing, think long and hard about it. The law works against you, even if you are in the right. It’s also why filmmakers can so blatantly lift ideas from other storytellers: they know they can get away with it. All they have to do is change some elements of your book, and they are free to call it their original story.

Breach of contract lawsuits, however, are a different kettle of fish.

The landmark case of “Buchwald vs. Paramount” in 1990 provides legal precedent for what it means to have a film “based upon” an author’s work — — if that work is under contract with the film company. The lawsuit, in brief, was about a screen treatment that columnist Art Buchwald sold to Paramount. The treatment of “It’s a Crude, Crude World” is about a “despotic African potentate who comes to America for a state visit.” Things go wrong during his visit to the White House, he’s rebuffed by a black State Department officer. He’s deposed and ends up destitute in a DC ghetto. There he meets and marries a woman and finds true happiness as “emperor” of the ghetto.

Paramount optioned the treatment and the project went into development, with Eddie Murphy slated for the role. It died in development.

Years later, Paramount produced the movie “Coming to America” starring Eddie Murphy. Buchwald is not credited. Murphy’s film is about a rich African potentate who comes to America in hopes of finding a woman who will love him for himself, not for his wealth. He goes to Queens, disguises himself as poor, and falls in love with a down-to-earth woman whom he later marries — and brings back to Africa as his princess.

Do you see all the differences between the two projects? They are certainly not identical. They both have a rich African potentate who comes to America and falls in love, but the differences made Paramount confident they could call it original.

Buchwald disagreed, took them to court … and he won.

During the trial, the question arose of the meaning of “based upon” when the story idea is under contract. Here’s what the court wrote:

“…In ‘Fink’, as in the present case, the contract between the parties obligated the defendant to compensate the plaintiff if the defendant created a series ‘based on Plaintiff’s Program or any material element contained in it.’ The court stated that a ‘material element’ could range from a mere basic theme up to an extensively elaborated idea, depending upon what might be proved as the concept of the parties… The Court noted that its ‘based on any material element’ test was ‘quite close to the concept of ‘inspiration for’ which was the key to the upholding of an implied contract…”

When a book is under contract to a film company, that film need only be inspired by the book to be considered “based upon” that book. This is why many films that are officially based upon books end up so different from the books themselves. Yet they are still considered “based upon” the book.

And this is why my breach of contract lawsuit against Warner Bros. has two firm legs to stand on. It’s not difficult to see that GRAVITY has more than a few material elements in common with the film. My book is under contract to Warner Bros’ subsidiary. And the film appears, at the very least, to be “inspired” by the concepts of my novel.

It also explains why Warner Bros. appears so determined to declare itself not bound by the contract I signed with New Line.

If you are interested in reading an in-depth accounting of the Buchwald v. Paramount case, I highly recommend the book FATAL SUBTRACTION by Pierce O’Donnell and Dennis Mcdougal. O’Donnell was Buchwald’s attorney, and the inside look at a Hollywood lawsuit will make your hair stand on end.

6 replies
  1. Wayne Borean
    Wayne Borean says:

    Tess,

    I would love to see the court filings on this. Would it be possible for you to post them here?

    Having them available would let other writers also see them, and who knows someone might spot something.

    Wayne

  2. benhunsaker63
    benhunsaker63 says:

    I am glad the recent ruling gives you the opportunity to refine your argument within the confines of the law. I hope that the court follows the precedent you have shown here and does not go all “judicial activist” on you. I watch your case with interest, but more so with hope for your prevailing. Keep up the good fight. In the mean time, I need to read more of what you have written.

  3. Lucian Ciuchita
    Lucian Ciuchita says:

    Dear Tess, I am with you and I hope to win. My trial is against Escape Plan producers and must be together against to this powerful opponent( Hollywood), who is trying to profit from our work, to steal our ideas and stories. I am a writer from Romania, which is recognized by a few symbols: Dracula, the former dictator Ceausescu, and a few stars of the sport: Nadia Comaneci and Ilie Nastase … For your readers I’am sending bellow first intention of summons which has been sent all over the world…
    Added on March 7, 2014 11:38 am

    Romanian screenwriter wants to sue producers of American film Escape Plan for intellectual theft

    by Irina Popescu

    Romanian screenwriter Lucian Ciuchita wants to go to court against the producers and writers of American film Escape Plan, starring Sylvester Stallone and Arnold Schwarzenegger, in case they will not respond to the notifications already sent to them.
    He accuses them of intellectual theft, saying they’ve “used as inspiration” and “copied” his script Prizonierii Apelor (Prisoners of the Water), reports local news agency Mediafax.
    He said he already notified the film’s producers and writers and he is convinced that he will find “a reasonable solution” for the copyright, adding that otherwise he would “carry a full battle” through both civil and criminal avenues.
    “The criminal proceedings will take place in both Romania and the US, for intellectual property theft. I am determined to make all judicial and public efforts to get the damage caused by the copyright. They have took the story of my script Prizonierii Apelor as being their own and annexed it, with some changes, to the initial script The Tomb, “ said Ciuchita, quoted by Mediafax.
    He also said that he wrote the script for Prizonierii Apelor two years ago.
    Escape Plan is a 2013 American film starring Sylvester Stallone, Arnold Schwarzenegger, 50 Cent, written by Miles Chapman and Jason Keller. The movie had an estimated budget of USD 50 million. Watch the trailer below.
    Irina Popescu, irina.popescu@romania-insider.com

  4. bryson54
    bryson54 says:

    dear ms. gerritson,

    so glad the judge has ruled you get another shot.

    think you will prevail.

    copyright infringement, like plagiarism is historically

    difficult to prove.

    love your writing.

    read all your early medical thrillers.

    feel i know your character and you would not

    be suing unless you were in the right.

    have not read ‘gravity’ but will order tomorrow.

    god bless you and yours.

    nan ryan

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