At the risk of a copyright infringement suit by AFP, here is an article of theirs (edited, transformative) about the movie Syriana:
PARIS (AFP) - The makers of the US geopolitical thriller movie "Syriana" denied in a Paris court a claim that they had stolen the idea from a French writer.
George Clooney' name production company Section Eight [was] sued by Stephanie Vergniault who claims "Syriana" is based on a script which she wrote in 2004.
She is claiming two million euros (2.55 million dollars) and 35 percent of receipts.
But lawyers for the film-makers told the court that the two works bore no similarity, and that filming of "Syriana" was already well advanced by the time they supposedly became aware of Vergniault's script. ... It opened in the United States in November.
The court is to rule in the plagiarism suit on June 19.
I am curious about the dual damages sought, especially the 35% of the receipts: that is a whopping figure and seems rather contrived: how could one say that 35% of the people who saw the movie did so based upon allegedly infringing material, and a script muchless. Perhaps the damages are unique to French law.
In the United States, there is a vigorous theory of apportionment, seen in the statutory language that awards only those profits of defendant or losses of plaintiff that are attributable to the infringement. In addition to the skill of Syriana's screenwriter (who also wrote Traffic) one might think a fair amount of the attraction of Syriana is attributable to the fame of George Clooney. In Learned Hand's second Sheldon opinion, 106 F.2d 45 (2d Cir.) , aff'd, 390 U.S. 390 (1939), apportionment was ordered where a play was found to have been infringed by a movie. Experts testified that much of the popularity of the movie was attributable to the stars, especially Joan Crawford and her dress by Adrian. Twenty percent of the profits were awarded, out of an "abundance of caution," with ten percent being the favored figure. The Ninth Circuit took the same approach in its "Rear Window" opinion, Abend v. MCA, Inc., 863 F.2d 1465 (9th Cir. 1988), aff'd, 495 U.S. 207 (1990), especially given the stars there, Grace Kelly and Jimmy Stewart and the fact that the Grace Kelly character did not appear in the infringed play. (And who could forget the opening shot in the movie of her?).
If there is infringement in the Syriana case, it will be interesting to see how such issues are handled.
Doesn't the actual price payable by a production company for the use of a pre-existing script bear some impact on the calculation of damages? There are many published opinions in public performance ASCAP and BMI cases in which the court looks to the license fees that could have been obtained as its guide. I've never been very happy with that approach even though it follows the statute: "The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer..." Actual damages measured by what a lawful use would have received aren’t viscerally satisfying if you happen to be a plaintiff.
ReplyDeleteI can think of no instance in which any production company has ever spent 35% of a budget on a pre-existing script even including the added costs of a re-write by a top writer. There are instances in which scripts are acquired in "turnaround" from another production company that has abandoned the project. It is customary to pay 100% of the prior company’s costs in the project (which would include what was paid to develop the script). Even with all those added costs, I can't think of any example where the cost in turnaround would be 35% of the ultimate budget of the film. When a project is acquired in turnaround it would include an assumption of the obligations under the existing writer contracts (maybe a 10% of net deal - - certainly not 10% of profits as they are understood colloquially).
So "damages" doesn't get you very far if you are a writer. That leaves the road of profits and the apportionment you suggest in your post. And that's where the arguments can get circular because the relative value of the script is best measured by what the free market would say the relative value of a script is against every other component of the film. So if the script is 6% of the budget, then the infringed writer should get 6% of the profits, less the damages already awarded on the basis of what the writer would have been paid.
The 100% paid for scripts in turnaround is to make sure everything, including all changes paid for, is owned free and clear. It only makes sense, though, arguably, it can mean a script is like a poison pill.
ReplyDeleteIt is impossible to know precisely how valuable the script is in creating profits of a finished product, but didn't Steven Spielberg say the script in Twister was worth 10% of the profits, or some number on that order?