My Gravity lawsuit and how it affects every writer who sells to Hollywood
tessgerritsen.com
tessgerritsen.com
Instead they just screw her, no recognition, no money? How is that the default thought process for a company? This may be vindictive but I hope the court sticks it to Warner Bros in the most painful way possible. Something needs to be done to change the decision making process at that company.
Just a quick correction, but Tess Gerritsen is female.
Otherwise, I agree. Very unfair and they deserve what is (hopefully) coming.
I did not downvote.
What puzzles me is why we hardly ever hear of military or even professional reprisals against these companies.
This is considered acceptable in some cultures.
Someone probably got a promotion for this based on saving the company some amount of money and will see no negative consequences even if the courts stick it to WB financially.
1. The movie "Gravity" is primarily an action/special-effects pageant about an astronaut trying to get safely back to Earth after an accident destroys the space station she was on. The book "Gravity" is a medical techno-thriller about a doctor in space fighting a disease outbreak on a space station. Reasonable people can probably disagree about whether the movie, given its significantly different plot, is even a derivative of the book at this point.
2. The lawsuit was not regarding plagiarism, but rather for breach of contract related to the film rights for the book. Gerritsen alleges that Warner Brothers was bound by and failed to observe the terms of a contract she had signed with a company which became a subsidiary of New Line, which in turn became a subsidiary of Warner Brothers. The court found that even if all allegations in her complaint were taken to be true, they still would not establish that Warner Brothers was bound by that contract. This mostly seems to depend on the arcana of contract law and how mergers and acquisitions pass obligations on (or don't pass them on), and suggests that the main issue was either she or her attorney did not sufficiently understand those arcana (given that she apparently contracted for a percentage of net rather than gross, a lack of experience in what makes a good contract for film rights seems likely) in order to build a successful complaint.
You don't particularly have to like the way that stuff works, but the simple truth is that changing it to make it work the intuitive and desired way in this particular case would probably result in many more other types of cases suddenly coming out in ways you wouldn't like.
That being said, I thought the bulk of WBs case wasn't that they weren't beholden to her contract, but that the movie GRAVITY is a derivative of a different work entirely.
Absolutely. To argue otherwise would be anarchy. Can you imagine if some company bought Microsoft and decided to start fresh? Like discard all the responsibilities it has to support its software and such. I know this is far fetched but my point is that this is what due diligence is supposed to discover and the acquirer's inability to find it does not mean they are absolved of the responsibility.
Pretty sure we still have a (outrageously expensive) support contract for NT4 on alpha for some godawful legacy system.
"Somehow"? They would do so via a completely standard clause that enjoins any acquiring entity to honour the terms of the contract. I have never negotiated a contract that did not have a such a clause. Neither has anyone else who knows what they are doing.
Maybe she had incompetent representation. Maybe the arcana of this specific acquisition were such that any contractual obligations were effectively terminated.
But don't pretend for a moment that this isn't bog-standard, boiler-plate-level stuff. We know exactly how such contractual obligations would be conveyed across multiple acquisitions, mergers and organizational changes because we are used to writing contracts that specifically say "If you're acquired, the obligations under this contract are on the acquirer."
I don't know the details of the contract, but I know that apparently it gave her a percentage of net, rather than gross, on the resulting film.
Which, when dealing with Hollywood, ought to be prima facie evidence of ineffective/incompetent counsel on the part of whatever attorney represented/advised her during the negotiations :)
A much more likely explanation is that the writer and her lawyer know perfectly well the difference between gross and net, but this was the best deal they could get, and it was better than nothing.
Writer and her lawyer: "We demand 3% of the gross."
Studio head: "I'm not offering any percentage of the gross."
Writer and her lawyer: "OK, we'll settle for 2.5% of the gross."
Studio head: "I told you: nothing on the gross. Zero. If you don't like that, get lost. I'll hire another writer."
Writer and her lawyer: "Well, OK, how about 3% of the net."
Studio head: "I think we can agree to that."
She talks of "net profit", not "gross profit", so that's a possibility.
"Starship Troopers" was, as I like to repeat a quip, "based on the back cover of a novel by Robert Heinlein".
"Frozen", while not involving a contract to the long-deceased author, is allegedly based on "The Snow Queen" though I fail to see the connection.
There are numerous other examples of a movie being almost entirely unlike the book for which rights were purchased at significant cost. Producers seem to often go to great lengths to ensure an even tangentially involved author is at least satisfactorily paid. Sure, there are famous examples where the reverse is true ("Forrest Gump", IIRC), but it seems in everyone's interests to err on the side of generosity where due, lest a case like this one codify outright screwing of the sources of ideas - and their eventual defense in substantially less profitable ways.
ST was actually written as a script completely unrelated to the book, and the rights to the book later purchased and superficial changes (character names, etc.) made to align with the book.
The universe and political system are depicted the way those critical of Heinlein likes to depict them, but largely because Verhoeven decided to make a "perfect fascist world" to satirise and criticise it, and Heinlein is often criticised for militarist viewpoints close to fascism.
The absence of the mech-armors stuff reflects this: He's mimicked nazism (the opening has shot-for-shop parallels to a scene from Riefenstahls "Triump of the Will"; the uniforms are modelled on the Gestapo; the architecture is modelled on Speer; the weapons are WWII inspired; the newsreel clips are mimicking WWII era propaganda movies) as he saw it growing up in nazi-occupied Netherlands.
Verhoeven is quoted as saying this about the book:
> I stopped after two chapters because it was so boring,...It is really quite a bad book. I asked Ed Neumeier to tell me the story because I just couldn't read the thing. It's a very right-wing book.
Gerritsen alleges that the film she worked with Katja on formed a basis for WB's film by dint of Cuaron's involvement in both projects. In the earlier project, Cuaron is alleged to have been "attached" to the project. In the WB production, Cuaron and his son wrote the entire screenplay.
The film term of art "attached" doesn't have a precise meaning. "Attached" can be an indicator of someone's commitment to a project --- a spectrum from "aware of" through "interested in" through "attached" through "committed". It could also mean that the person is sponsoring the project and shepherding it through the development process.
At no point does Gerritsen allege that Cuaron's screenplay included any of Gerritsen's writing. At best, her claim is to the storyline --- the ideas --- of the WB film.
What Gerritsen is saying --- informally, in explaining her reason for deciding to pursue the case, and also in rebutting WB's claim that Gerritsen had already conceded the film wasn't based on her work --- is that she had always felt that the WB project had an uncanny resemblance to her own story, but that she didn't have a smoking gun until she discovered Cuaron has been "attached" to the earlier project without her knowledge.
The fact that the author of the book and a contributor to the punch-up of the screenplay was unaware that one of the most famous directors in Hollywood was "attached" to the project suggests that the word "attached" was meant in its more casual meaning.
But the fact that Cuaron and his son wrote a screenplay involving a novice astronaut marooned on the ISS after being made aware of a project with a similar story suggests that there's some link.
Book: Dr. Emma Watson has been training for the adventure of a lifetime: to study living beings in space. But her mission aboard the International Space Station turns into a nightmare beyond imagining when a culture of single-celled organisms begins to regenerate out of control -- and infects the space station crew with agonizing and deadly results. Emma struggles to contain the outbreak while back on Earth her estranged husband, Jack McCallum, works frantically with NASA to bring her home. But there will be no rescue. The contagion now threatens Earth's population, and the astronauts are stranded in orbit, quarantined aboard the station -- where they are dying one by one...
Movie: Dr. Ryan Stone (Sandra Bullock) is a brilliant medical engineer on her first shuttle mission, with veteran astronaut Matt Kowalsky (George Clooney) in command of his last flight before retiring. But on a seemingly routine spacewalk, disaster strikes. The shuttle is destroyed, leaving Stone and Kowalsky completely alone - tethered to nothing but each other and spiraling out into the blackness.
While my film was in development, I re-wrote the third act of the film script with scenes of satellite debris destroying ISS and the lone surviving female astronaut adrift in her spacesuit.
On the other hand, if they convince a judge/jury that there was no connection between her book and the movie then fine. Case closed, go home, no worries.
The key problem here is that if a studio can do a neat little legal dance to avoid contract obligations then that is a big deal. If this is simply a matter of evidence not supporting the claims in this instance then not a big deal.
Remember that sometime between 1999 and 2002[1], Gerritsen wrote and submitted a third act re-write including "scenes of satellite debris destroying ISS and the lone surviving female astronaut adrift in her spacesuit." (core suspense of Cuaron's script).
I didn't see the word plagiarism mentioned anywhere. That's overused, and means presenting someone else's work as your own, not ripping someone off by basing something on their work. If someone else had made the Gravity movie, then the studio took it and released it as theirs, that would be plagiarism, but not stealing plot ideas.
e.g. Harvard's "What constitutes plagiarism" at http://isites.harvard.edu/icb/icb.do?keyword=k70847&pageid=i... says:
"[I]t is considered plagiarism to draw any idea or any language from someone else without adequately crediting that source ... When you use your own language to describe someone else's idea, that idea still belongs to the author of the original material. Whenever you use ideas that you did not think up yourself, you need to give credit to the source in which you found them, whether you quote directly from that material or provide a responsible paraphrase."
Wikipedia and the dictionary on my Mac also make reference to the taking of ideas as plagiarism, so it doesn't seem uncommon to include ideas in the definition.
EDIT: markdown fail.
So it is possible that: 1) X sells rights to Y, having Y commit to obligations in exchange. 2) Z acquires Y. 3) Z now has the rights but not the obligations.
WTF?
Her attorney didn't describe with enough detail why WB was on the hook. The court dismissed it, but they are allowed to fix it and go on.
This is a really standard litigation issue. It isn't a big deal.
Not that I agree with the above, but let's remember that this attitude is pervasive in every industry today.
I can imagine a "less likely" and "more likely" way this might play out:
1.) "less likely" would be something bordering on blatant theft -- perhaps the contract specifies options or bonuses, but the parent company, after the acquisition, no longer wants to pay. That would be fairly blatant, though not impossible.
2.) "more likely" would, I think, be issues regarding copyright, which, with software, allows something of a fudge factor, since software is always changing, and no one programmer writes the whole of a large system. I'm thinking of my own startup here: during the years 2000 to 2002 I created a content management system, which then became the basis of a company that was formed in 2002. But the founding documents of that company gave me the right to specific royalty payments for the CMS, even if we eventually agreed to dissolve the company (which we did in 2008). But suppose the company was acquired, and then the acquiring company declared that the requirement to pay royalties was null and void? This is very similar to what apparently happened with Gravity.
Worrisome.
http://www.wsj.com/articles/SB100014240529702046219045770183...
Zynga CEO Mark Pincus: "I Did Every Horrible Thing In The Book Just To Get Revenues" http://techcrunch.com/2009/11/06/zynga-scamville-mark-pinkus...
there should be some federal minimum standard so that incompetent and malicious state actors in one state don't try to undercut fundamental economic policies of other states to lure away the companies from states like California... You should not be able to say "Come and incorporate in Texas and you'll own whatever your employees and ex-employees think for their entire lives". Or come to Texas and you won't have to pay a minimum wage to your employees.
https://groups.google.com/forum/#!topic/comp.dcom.telecom/op...
http://repository.jmls.edu/cgi/viewcontent.cgi?article=1118&...
1. initial stock agreement promises acceleration of vesting upon acquision.
2. later on, an acquirer comes along. They want the employees to stay. So, their merger agreement nullifies the stock provision and issues new stock with reset vesting. Don't like it? Don't accept the acquisition, but you can't pretend that your initial contract is going to help you any.
Not true, actually. The acceleration occurs before the acquisition. You are now a minority shareholder with a dissident vote--most states have corporation law provisions for making sure that minority, dissident shareholders are statutorily required to be paid fair market value for their shares. The acquiring company is required to buy you out, and the acquisition price establishes a de facto fair market value.
https://pmcdeadline2.files.wordpress.com/2015/01/wb-gravity-...
It's more complicated (of course) than Gerritsen makes it out to be. The Hollywood Reporter does a decent job of explaining the contours:
http://www.hollywoodreporter.com/thr-esq/warner-bros-knocks-...
(and, in fairness, it's more complicated than WB makes it out to be as well).
Most of the ruling concerns itself with the admissibility of various documents for the purposes of a dismissal ruling, which is complicated by the fact that the court has to stipulate all of the plaintiffs facts as true and still find no cause for a lawsuit in order to grant the motion.
From what I can tell, the meat of the ruling is:
* Gerritsen didn't have a contract with WB, but with Katja and, presumably, New Line.
* Gerritsen's argument depends in part on the notion that Katja/New Line would, absent control by WB, have fought against WB making a picture based on work they'd already licensed. Katja/New Line didn't do that.
* Gerritsen might have a legitimate grievance, but it's with Katja/New Line and its previous owners, who were paid by WB. Gerritsen is thus in effect a creditor of Katja's, and if she's owed something, it's owed from the proceeds of the sale, not from WB's own bank account. Or something like that?
It's headachey stuff.
Otherwise it'd be trivial to make a company go millions in debt, then sell it to an accomplice who would keep the assets and poof the debts.
This still happens, of course, but there are fraud laws against it, and successful attempts when they happen generally require wriggling through a lot of loopholes.
[1]: http://www.tessgerritsen.com/difference-breach-contract-copy...
[2]: http://web.archive.org/web/20111108152730/http://www.degenev...
What I don't know is if "based on" is outside those terms. From looking of the WGA website, it looks like it might well be.
Where I think she'd be out of luck for sure is that the changes she made to the script (which are the places of greatest similarity to her book) would have been work for hire for the studio, and they'd own those changes outright. Which makes sense if, for example, the studio requested those changes from their side. Even if they didn't explicitly give her notes to make those changes, she did so while she was hired by them, and was compensated for making them.
I'd be interested in hearing from a highly experienced screenwriter or screenwriter's agent. There are indeed a lot of subtleties at work that aren't readily apparent. I think there's a good chance the studio is in the right here.
So if the movie isn't based on her work, how can it be seen as a result of the contract she signed?
Also, Gerritsen specifically alleged "fraud", and so the ruling considers whether sufficient facts were presented which, stipulated as true, would have led to a colorable fraud claim.
It depends on what you mean by "buy", and what you mean by "company".
Companies can assume the assets of another in a number of ways. The two most common are share purchase and asset purchase. If you buy assets, you do not assume liabilities. Whatever you use to purchase the company may pay off the selling company's creditors, but the new company assumes none of those liabilities. In a share purchase the obligations generally travel with the company.
The assumption of liabilities can also depend on whether the company being purchased is bankrupt or insolvent, as in those cases the shareholder rights often cease and in any case with very few exceptions lower in priority to creditors. It is often left to agreement of the parties (selling company, purchasing company, and creditors) or a bankruptcy judge to determine the rights through purchase.
The above is an oversimplification and somewhat jurisdiction-dependent in the commonwealth, but the gist is that a company can (and many often do) assume the rights of others without obligations.
Readers may find the story on Old GM and New GM interesting. Here is an article by my friend and colleague David Skeel, who testified before Congress on the unfairness of assumption of assets without first satisfying obligations in the case of the GM/Chrysler bankruptcies: http://www.wsj.com/articles/SB100014240527023037453045763616...
To add some more color: Federal Rule of Civil Procedure 8 only requires a complaint to allege facts, which if proven true, would make out a cognizable legal claim. A defendant may make, under Rule 12(b)(6), a motion to dismiss a complaint on the basis that the plaintiff fails to raise a cognizable claim.
In evaluating such a motion, a court cannot look beyond the four corners of the pleading, and to certain authoritative documents (official records, etc). So a defendant cannot attach a bunch of documents to negate the allegations in the claim, because at this early stage the plaintiff has not had the benefit of discovery and so cannot challenge the defendant's documents with his own. Frankly, courts can get pretty sloppy about this, but the judge here did a good job and excluded from consideration most of the documents Warner Bros. attached to their answer.
[1] Although at this stage, the author merely has to allege, not prove, the fact of the merger. It appears she failed to allege the relevant facts in her complaint, and tried to get them in by referring to the SEC filing. But she should just be able to amend her complaint and allege the facts directly.
Return of the Jedi never made a profit "despite having earned $475 million at the box-office against a budget of $32.5 million" (Wikipedia "Hollywood Accounting")
Very sad.
It works because they can. They do it because they've figured that out. It's that simple.
For example, one of Peter Jackson's main grievances when he sued New Line was that he had been promised a cut of the revenue from merchandising right sales. New Line sold the merchandising rights to its own sibling and subsidiary companies using a closed bidding process at well below market rates.
Also, I can't imagine any of my friends still working with them after I've been screwed over.
Isn't this a relatively small world? Why work with people like that?
Since any contract can be full of tricks, it just means you need an army of lawyers even for the simplest things. It then gets really hard to actually do anything. And if you're poor, you're bound to get exploited by some obscure loophole.
Is it because people are that inexperienced, that some rookies will still fall for net profit thing? Heck, I'm not in film, and even I know not to ask for net. :P
Sometimes inexperience. Sometimes you just don't have the leverage.
In this instance, she probably got paid some fixed amount up front and wanted her name in the credits.
From reading the article, it really sounds like the only thing that's contentious is the fact that they didn't give her credit. She probably assumed that the whole percentage of net was actually as useless as expected.
She mentions that the contract also entitled her to a "production bonus", which sounds like some kind of lump-sum payment if her book is made into a movie.
edit: grammar
The short version is that the system has become so complex that the outputs are becoming less correlated to the inputs. The money coming out is losing its relationship to the motion pictures going in.
I did an electrical design for them, and ended up not getting paid because the debt was with the defunct company, not the wife's company.
When I asked for my father's advice, he told me that legal channels are powerless in these cases, and offered to loan me a construction crew to go to the land at night and either steal or destroy as many panels as I felt was fair.
Frankly I'm surprised it doesn't happen more often, although I am guessing that it's more of a Mediterranean thing than an Anglosaxon thing. The general consensus among Italians and Greeks to whom I told the story is that this was a fair manner to solve the issue, the general consensus among Americans and Canadians to whom I told the story is that my father proposed a criminal action (This whole thing happened in Italy).
Virtue probably lies in the middle, but I wouldn't know what the middle ground for this sort of thing is...
Even if the director had saw her book and thought "cool setup, a woman in space", why should that be legally enforceable? Even the author admits there's no copyright claim involved.
But imagine another studio had made a film with a story so similar to the book; with the exact same title; and screenwritten by the guy who was down to direct the first project. I bet Warner Brothers would have sued them to hell and back, and the inherited contract would have been portrayed as solid as a rock.
Now I know nothing about Hollywood but I do know that if you have a percentage of the net then everyone you meet sees a great big L on your forehead. Almost no movie makes a net profit.
You get a percentage of the gross or you are not taken seriously.
Correct, but you also have to be taken seriously to get a percentage of the gross. Not everybody who asks for gross points gets them. Generally speaking, you need to be on the A list, or have a killer agent, or have a property that incites a bidding war between studios.
http://www.plainsite.org/dockets/28d2o3t22/california-centra...
Wait ... I don't know anything about anything and even I know you don't ever stipulate profits in a film rights contract ... right ?
Also it's worth nothing that going out-of-your way to be fair isn't just "being nice," it selfishly reduces risk of issues, especially in small, highly-connected industries where reputation is the first consideration.
So if we are to take her account at face value, it seems like WB misjudged that word would get around and then lawsuits. (An expensive lesson in hubris.)
Your just world theory conform to reality.
Edit: Updated for civility.
Mandatum 31 minutes ago | link
I don't believe this is HN-relevant.
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LukeB_UK 28 minutes ago | link
Derivative works and licensing are a huge part of the software development industry and open source.
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