Suing Hollywood: why writers always lose

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.

They lost.

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.

1 reply
  1. Lucian Ciuchita
    Lucian Ciuchita says:

    Romanian screenwriter files criminal complaint against American film producers

    by Irina Popescu
    Romanian screenwriter Lucian Ciuchita has made a criminal complaint against five production companies, two directors and two screenwriters from Hollywood, accusing them of stealing his script and making a movie based on his idea. The action movie is called Escape Plan and brings together two of the world’s most famous action actors Silvester Stallone and Arnold Schwarzenegger.
    The Romanian prosecutors have started an investigation of the facts for forgery and use of forgery and based on the results will decide if they prosecute the movie’s producers or not.
    The Romanian writer claimed that the intrigue, the action and Schwarzenegger and Stallone’s lines in the film belong to him and were allegedly taken from a script he has sent to Hollywood a few years ago. He first started a civil case against the ovie’s producers.
    After the trial in Bucharest started, the Americans sent some documents to Romania, that were checked by an expert, reports local Digi24. According to Lucian Chiuchita, the expertise showed that the document were false and the authorities have started the prosecution for forgery and use of forgery.
    The Romanian wants his contribution to the film to be recognized and also asks the rights he is entitled to as a screenwriter, which would amount to some USD 10 million. The movie, which cost some USD 50 million to make, had gross revenues of some USD 137 million.
    Romanian screenwriter wants to sue producers of American film Escape Plan for intellectual theft.
    Irina Popescu, irina.popescu@romania-insider.com

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