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.





13 replies
  1. johnfmcclelland
    johnfmcclelland says:

    Tess, this is miscarriage of Justice. I’m so sad for you, but I admire that you had to balls to fight this in the first place.
    Looking forward to seeing you in Gateshead or Newcastle again in the future.
    Best wishes

  2. confuzzled by bureaucracy
    confuzzled by bureaucracy says:

    You might like to read about Hasbro Inc. vs Clue Computing, Inc.
    While the type of case is different, it does show that the little guys CAN (eventually) win against corporate deep pocket bullying.
    Hang In There! We’re rooting for you.

  3. tuphr
    tuphr says:

    What else could you do? You’ve been to court with a capable sounding legal team, which is a whole lot more than most struggling artists can do when their work is plagiarised.

    There’s a film that came out in UK Cinemas recently called Man Up, it’s synopsis is identical to a project I was touting in London in 2010. Although a different scenario to yours, a writer entered their script with the same story as mine in a competition in 2011 and the project got developed and produced by an independent production company. There’s not a thing i can do about it, because legal costs are ridiculous and anyway I wrote the thing so I might make some money to live!

    There’s a long list of writers who’ve been treated like this all the way back to some of the most famous films of the 20th century. I dread to think who the real creators of many of these successful films really are and how the option of legal action worked out for them.

    The corporate maze that allows these companies to subvert their activities is mind-boggling and it’s designed to protect them in the event of legal action. And in your case, it’s a clear and blatant infringement of the rights to your intellectual property. Obviously the legal system assumes no responsibility to respect these rights whatsoever.

  4. writingwrongs
    writingwrongs says:

    Hi Tess – as a fellow novelist and screenwriter I find the US legal system to be both frightening and confusing. There just doesn’t seem to be a lot of room for common sense. I’d like to think that if a jury heard this case they’d see so many parallels that you would at least get a fair hearing. I know there are huge issues around the rights and wrongs of this but they should at least be aired. If Twelve Angry Men (or Six Men, Six Women) walked out of a screening I’m sure there’d be at least one Fonda willing to point out the similarities and be prepared to have an argument about it. You are probably sick and tired of it all now, but do bear in mind that the movie was released in just about every country in the world, and they don’t all have legal systems as complex as your own. You could still tie ’em up in knots.

  5. ShowBizNsider
    ShowBizNsider says:

    A few months ago, the Scriptnotes podcast devoted an entire episode to explaining the details of this case. It’s long, but it was tremendously helpful to me as I tried to understand the legalities of what’s going on, here. I’d highly recommend it to anyone who’s been following this situation. The podcast itself is archived behind a pay wall, but you can read the transcript of it here:

  6. Tess
    Tess says:

    Thank you for the comments. A few responses:

    Re: the Scriptnotes podcast: it is of interest that in 2014, John August declared he had a “longtime talent crush” on Alfonso Cuaron, and he hosted a long Q&A with Cuaron. Also of note is the fact that in WB’s most recent intimidating communication with my attorney, they actually referenced John August’s podcast. I question Mr. August’s neutrality in this matter.

    Re: Complaining to Writers Guild directly: I am not a member of the WG. I don’t believe I’m able to take this matter before them. Authors Guild has been in contact with me about the matter, and will be offering some comments.

    Re: Copyright infringement: When we first brought this matter to WB, they informed us we could not sue for copyright claims because “we (through New Line) own the copyright.” New Line continues to hold the film rights to my Gravity project, so legally they and WB had the right to make the film — we were just asking for them to abide by the contract.

  7. Tess
    Tess says:

    To Oriel and CharlesLeadler

    There seems to be a website glitch, where your comments, which have been approved, are not showing up. Will try to fix this

  8. Tess
    Tess says:

    Unfortunately, we were never able to present to a jury. The judge never addressed any issues of similarity between book and movie, and specifically said she did not even consider that part of our complaint. She was only focused on whether WB was responsible for NL’s liabilities to me. Since we were stopped by this particular issue, we had no chance to present our evidence regarding the links between the two projects.

  9. Joanne
    Joanne says:

    “I question Mr. August’s neutrality in this matter.”

    I completely agree. I was really surprised when I listened to that episode of the podcast. I was really expecting them, as writers, to be able to clearly see the injustice here.

    I suppose it’s inevitable that they’ll be biased. They don’t want to badmouth a potential employer or fellow screenwriter, even if it means ignoring the blatant injustice.

    I am very sorry for all you’ve had to go through regarding the lawsuit.

  10. ImagerMilt
    ImagerMilt says:

    Tess, I completely understand. Abby Norman’s article was very good. You are so right about the problems lying with the justice system. My Brother-in-law is deeply entwined in a legal situation. In his case it is just as you have and are saying both the justice system and the legal journalism that he is up against. Both in this case are biased. Both controlled in fact by the wealth and powerful of one individual.

    I appreciate you speaking out the way that you are. Know that I support your efforts and appreciate your work.

  11. Tess
    Tess says:

    Thank you, Milt. The hardest part is dealing with the press and the trolls (some of whom I assume are working for the studios) who will say anything and everything to downplay my reasons for suing.

  12. CorporationsCanBeEvil
    CorporationsCanBeEvil says:

    Hello Tess,
    I recently heard that you decided to not move forward with your Gravity lawsuit. Having recently gone through the legal system against an incredibly large corporation (larger than WB) for breach of contract related to creative work – and winning – I can say that the victory is largely hollow. They always find a way to get out of their obligations. The cost, drain on creative time, and stress weren’t worth it and the court system was entirely geared toward the enormous corporation. Even after our victory, the corporation is showing signs of hiding behind their mothership company to avoid parts of the award.

    I’m just writing to say don’t feel bad about your decision because even if you had won, it would have likely been a wash. Keep writing. Success is the best revenge!

  13. 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,

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