Tuesday, June 20, 2017

Jordan-Benel v. Universal City Studios (9th Cir. - June 20, 2017)

Claims that someone stole your screenplay and wrote the same thing are often weak.  This one may be otherwise, at least if you believe what's in today's Ninth Circuit opinion.

Here are the relevant facts:

"Around January 2011, Jordan-Benel wrote a screenplay entitled Settler’s Day about a family’s attempt to survive an annual, state-sanctioned, 24-hour period in which citizens are allowed to commit any crime without legal consequences. He registered the screenplay with the Writers Guild of America and the U.S. Copyright Office.

Around June 2011, Jordan-Benel’s manager, Adam Peck, emailed David Kramer, Managing Director of Feature Productions at United Talent Agency (“UTA”), about Settler’s Day. Kramer responded that Peck should contact Emerson Davis at UTA to discuss the screenplay. Peck then spoke with Davis and asked permission to submit the screenplay. Davis agreed and asked that Peck email the screenplay to both Davis and Kramer. On July 8, 2011, Peck submitted the screenplay.

Based on custom and practice in the industry and prior dealings between UTA and Peck, UTA understood that the submission was not gratuitous and was made for the purpose of selling the screenplay to a UTA client. Around July 13, 2011, Davis emailed Peck to confirm that he had read the screenplay but that he was going to “pass.” Nonetheless, someone at UTA sent the screenplay to UTA client James DeMonaco. DeMonaco and his partner, Sebastian Lemercier (also a UTA client), wrote a script entitled The Purge, which allegedly copies Jordan-Benel’s ideas from Settler’s Day."

That doesn't sound like an absurd claim, does it?  And there's a lot of money at stake, since there's not only the original movie, but also a couple of sequels.

Now, even with a decent claim on the merits, you need to make sure that you don't mess things up.  In the present case, there may well have been a strategic error, since the plaintiff not only sued to obtain damages, but also for declaratory relief that he was the owner of the screenplay and hence entitled to credit.

Two problems.  One, such relief is foreclosed by precedent.  Two, it potentially opens you up to an anti-SLAPP motion.

And an anti-SLAPP motion is precisely what the defendants file.

Plaintiff ultimately (and wisely) abandons the "credit" claim, but defendants press on with the anti-SLAPP motion, both below and on appeal.  And rightly lose.  Asking for money because someone stole your work doesn't arise out of free speech activity.  Judge Pregerson's opinion is spot on.

But it was still a strategic mistake to ask for credit.  One that might have cost the plaintiff on appeal (and still might cost them on remand, since the Ninth Circuit correctly notes that getting one SLAPP claim dismissed still might lead to a fee award even if the rest of the suit has merit.)

A reminder to be careful what you plead.

More is sometimes less.