My Gravity lawsuit & how it affects every writer who sells to Hollywood

February 1, 2015 7:51 AM

Tess Gerritsen, author of the 1999 book "Gravity", on the dismissal of her lawsuit against Warner Bros., in which she claimed that “Gravity” is based on her novel of the same name, and that she should receive screen credit and a percentage of the profits. She will have 20 days to file an Amended Complaint.

Legal documents: (PDFs)

Complaint

Motion to Dismiss

Order Granting Motion to Dismiss

posted by roomthreeseventeen (32 comments total)

She contracted for a percentage of the net profits. Given the way Hollywood accounting works, her recovery may be limited, assuming the suit is ultimately able to go forward and she wins.
posted by jedicus at 7:57 AM on February 1, 2015 [1 favorite]

> "She contracted for a percentage of the net profits."

And a $500,000 flat fee as a production bonus, among other things. Even if they pretend the "net profits" are zero dollars, she'd still be owed that.
posted by kyrademon at 8:07 AM on February 1, 2015

Net profits, but also a screen credit and a $500k bonus. Definitely worth pursuing.
posted by Lemurrhea at 8:08 AM on February 1, 2015

I'm interested in how Warner managed to convince a judge they had nothing to do with New Line. Every New Line logo I've seen has "A Time Warner Company" right underneath.
posted by infinitewindow at 8:10 AM on February 1, 2015 [2 favorites]

Obviously there are other grounds for recovery, I was just pointing out an important detail omitted from the FPP.
posted by jedicus at 8:11 AM on February 1, 2015

It's a great, textbook in fact, example of bad lawyering and rules of procedure.

Gerritsen sued on breach of contract ("you used my novel differently from how we agreed"), and inexplicably failed to sue on plagiarism ("you used my novel without my agreement").

Warner Brothers was able to show to the Court's satisfaction that Gerritsen hadn't shown enough evidence to suspect it was a successor party to the option contract, so it doesn't matter what that contract said.

Court rules don't allow you to add a new cause of action after your lawsuit is dismissed, so while she's free to try to fix the complaint on breach of contract, she can never sue on plagiarism. (At least in the United States; my guess is she'll sue on plagiarism in other jurisdictions.)
posted by MattD at 8:13 AM on February 1, 2015 [3 favorites]

Yeah, she got hosed by Warner (and, most likely Cuaron, as well) If she and her team can show Warner honored even one contract NewLine had with a writer, she should win.
posted by Thorzdad at 8:13 AM on February 1, 2015 [1 favorite]

a granted motion to dismiss with leave to refile is no biggie. her suit is alive and well
posted by Ironmouth at 8:13 AM on February 1, 2015 [4 favorites]

Warner didn't have to show that it hadn't assume the contract. Gerritsen had to assert sufficient evidence that it had assumed it, by choice or by operation of law, in order for a jury to be able to weigh the claim, and the court ruled that she hadn't.

Of course, in failing to assume the obligations of the contract, Warners also admitted that they did not have the BENEFITS of the contract, which basically would give them little defense to plagiarism were it shown that the movie impermissibly resembled the novel ... but Gerritsen defaulted the ability to sue on that, so there you go.
posted by MattD at 8:15 AM on February 1, 2015

I think you can't sue on plagiarism grounds because the contract exists. can't plagiarize something you paid for. the question is whether or not the additional terms of the contract apply to the supposed successor in interest.
posted by Ironmouth at 8:17 AM on February 1, 2015 [1 favorite]

Break out the popcorn, this is going to be fascinating.
Writers in general have needed something like this for a long time, and it's nice to see that the planets have lined up somewhat favorably to allow some light to be shed on their shitty practices.
posted by John Kennedy Toole Box at 8:24 AM on February 1, 2015 [1 favorite]

Net profit? The net is fantasy.
posted by Hamusutaa at 8:25 AM on February 1, 2015

From what I can tell, it's not a plagiarism charge because there's no question that if they wanted to, they had a right to make a movie titled Gravity based on a book about a lone woman stranded alone in space by an accident.

They're just claiming they didn't do that. Instead, they are saying that, by complete coincidence, they made a movie titled Gravity about a lone woman stranded alone in space by accident which had nothing to do with that book. (Which the author of that book accepted until she found out that the screenwriter/director had been attached to the project to turn her book into a movie.)
posted by kyrademon at 8:31 AM on February 1, 2015 [1 favorite]

Warner didn't have to show that it hadn't assume the contract. Gerritsen had to assert sufficient evidence that it had assumed it, by choice or by operation of law, in order for a jury to be able to weigh the claim, and the court ruled that she hadn't.

By which I assume that the law does not require one to assume all obligations when buying a company outright - is that about it?

If that's the case, then should not Warner Brothers have a list of old New Line obligations that it was not assuming? Which should have come out in discovery?
posted by IndigoJones at 9:02 AM on February 1, 2015

She very clearly states her in post that this is not copyright infringent ("plagiarism" isn't a cause of action). The argument isn't that WB didn't have the rights, it's that they did have them per the contract and didn't fulfill their contractual obligations.
posted by schoolgirl report at 9:04 AM on February 1, 2015 [1 favorite]

Instead, they are saying that, by complete coincidence, they made a movie titled Gravity about a lone woman stranded alone in space by accident which had nothing to do with that book.

I've read Gravity and honestly the two aren't similar even at the vague plot level. The movie is about trying to get safely back after stuff blows up. The book is about an ancient plague breaking out on a space station. It's a medical thriller more or less in the mold of Coma or The Terminal Man.
posted by ROU_Xenophobe at 9:32 AM on February 1, 2015 [2 favorites]

If it's true that there was no copyright infringement than I don't see how Gerritsen ever had a case. Even if WB was liable on the contract, it was a contract to adapt her book. If they didn't adapt her book, and instead Cuaron was simply inspired to write a screenplay using the same public domain premise (woman doctor in space peril), there would have been no breech.
posted by MattD at 9:51 AM on February 1, 2015

> "It's a medical thriller more or less in the mold of Coma or The Terminal Man."

I am not in any position to judge the merits, but just to put it out there, she also says she wrote new scenes at the request of the studio when her book was in development which resemble more closely some of the events that occurred in the movie.
posted by kyrademon at 9:57 AM on February 1, 2015 [1 favorite]

Contract law is probably the least intuitive body of knowledge existent. Her "affects every writer" is perhaps bombastic and inaccurate, win or loose the effect on entertainment law is unlikely to be significant. From what ROU_xenophobe suggests there may have been little merit, there are so many ideas floating around and ideas are not the issue anyway. It sounds like the judge saw the film, read the book and sent the plaintiff's team off to make an viable legal case. From the last comment on her blog about having more information she may end up with an actual case. I'd expect the moment this is scheduled for a jury she'll get a nice settlement and the details will not be disclosed.
posted by sammyo at 11:14 AM on February 1, 2015

I'd expect the moment this is scheduled for a jury she'll get a nice settlement and the details will not be disclosed.

Sure, but WB will make her suffer and run up millions of dollars in legal bills for being the one to challenge them. I bet she'll also never sell the movie rights to one of her books ever again.
posted by zachlipton at 11:18 AM on February 1, 2015

Contract law is probably the least intuitive body of knowledge existent.

I disagree completely. Contract law can be abused, but it is a remarkably coherent, relevant, and functional body of law. It works, and that's because it's used and applied countless thousands of times every day. Everything there (in the UCC, at least) is there for a pretty good reason.

Constitutional law, on the other hand? That's a fucking joke.
posted by leotrotsky at 12:11 PM on February 1, 2015 [2 favorites]

For me the compelling part is the author's allegation that the director Cuaron had already been attached, inside/behind WB's curtains, back in 1999 or so, to develop a film from this novel. The author was given no knowledge of this arrangement. And then years later, Cuaron's actual movie came out which benefitted from her work, as part of the creative process, without him having to give any credit to Gerritsen. It's interesting how accountability can be divided up in this way so that it can be made to seemingly vanish.
posted by polymodus at 1:52 PM on February 1, 2015 [3 favorites]

Net is for suckers, always demand gross or cash.
posted by humanfont at 2:35 PM on February 1, 2015

zachlipton: "I bet she'll also never sell the movie rights to one of her books ever again."

Which if she didn't get paid for this one (at least from her point of view) isn't much of a loss.
posted by Mitheral at 3:49 PM on February 1, 2015

Bestselling romance writer and former law professor Courtney Milan is underwhelmed.
posted by Shmuel510 at 11:40 PM on February 2, 2015

And now Milan's walking back her underwhelming after Gerritsen explained in a blog comment that

It’s not a case of copyright infringement because, having transferred this particular exclusive right to New Line, she no longer has standing to sue for copyright infringement.

posted by infinitewindow at 9:34 AM on February 3, 2015 [1 favorite]

Sounds like more bad lawyering. Why isn't it among the complaints? If they're in breach they have no right to the assignment and then they're violating her copyright.
posted by phearlez at 7:31 AM on February 4, 2015

If they're in breach they have no right to the assignment and then they're violating her copyright.

I can't get this to make sense? (For starters, who do you mean by each of the three "theys"?)

If Warner and New Line are legally the same entity, then it had the right to make a movie out of Gerritsen's book and allegedly did so. If proven, the combined entity would be liable for breach of contract, as the author has gotten no credit and no payment.

If Warner and New Line are legally distinct entities, then the allegation would be that Warner infringed New Line's rights by making a movie out of Gerritsen's book. Normally one could rest assured that a movie studio will defend its rights, but it seems most unlikely that New Line would be inclined to sue its parent company.
posted by Shmuel510 at 10:58 AM on February 4, 2015

If they're in breach they have no right to the assignment and then they're violating her copyright.

I can't get this to make sense? (For starters, who do you mean by each of the three "theys"?)

Sorry - I thought the they was obvious since it's the studio being accused of breaching the contract by not making the required payment. My point was that if it's the contract that says "we have this right and own this thing" then if the contract doesn't apply to you then you wouldn't own that thing, would you?

But in reading down into the studio's response maybe this is bad lawyering in the initial contract by not giving the guaranty any teeth. The response asserts In 1999, Ms. Gerritsen entered into a “Purchase Agreement” with Katja concerning the Book, as well as a “Guaranty” with its affiliate New Line. and goes on to say The 1999 Purchase Agreement assigns Ms. Gerritsen’s “motion picture” and other copyrights in the Book to Katja. Id. Ex. 1 at 13 ¶ 3. In return, she received an up-front payment of $1 million, and Katja promised to pay her a production bonus of $500,000 and 2.5% of “Defined Net Proceeds” if Katja “produce[d] and release[d] a live action theatrical motion picture based on the Property.”

So maybe the assignment is done and final based on the 1M and then the guaranty doesn't impact that. So they - Warner Brothers - acquire the rights as part of New Line's assets but not the obligation to pick up the guaranty.

If the bad initial contract is the underlying problem then her "this can happen to you!" message is pointing at the wrong (or at least incomplete) bad actors. This was big bucks in play and someone should have made sure there was something in there limiting assignment if other clauses weren't fulfilled.

All that said, it still seems foolish not to include the copyright violation as part of the multiple causes of action. Suits can contain CoAs that don't all perfectly overlap.

The facts or circumstances that entitle a person to seek judicial relief may create more than one cause of action. For example, in the preceding example, the plaintiff might assert claims for assault, battery, intentional infliction of emotional distress, and violation of Civil Rights. She might also bring claims for negligent hiring (if the guard had a history of violent behavior which the store failed to discover) or negligent supervision. (When damages are caused by an employee it is common to sue both the employee and the employer.) All these causes of action arise from the same set of facts and circumstances but are supported by different rules of law and constitute separate claims for relief.

So the suit could have had one CoA about the failure to pay the fee and being in breach and another saying there's a copyright violation because the terms of the original contract were not upheld and therefore the assignment to use the copyright wasn't valid.

If it couldn't, ethically, because of the initial contract then it seems that Gerritsen should include that in her things writers should be concerned about. It's not the court's fault if her contract sucked.
posted by phearlez at 1:54 PM on February 4, 2015

phearlez, Gerritsen is presumably saying that the guarantee is applicable to WB as well. The guarantee seems to be mainly New Line saying that they'll back the deal, because Katja is a little small and could go under. The guarantee isn't really the issue.

I'd say the issues around copyright infringement are taken care of in paras 8 and 13 of the contract. 8, saying that the New Line can institute proceedings, and Gerritsen wouldn't interfere. You're saying there should have been a clause that, what, Gerritsen could require Katja to sue? That's a pretty shitty sale, then. And para 13 is saying that the only remedy allowable is money damage, nothing in equity (which could have meant that she got the IP back). That seems pretty standard and reasonable to me.

I don't think there's anything wrong with the contract. Her pleadings just need to assert more clearly that WB acquired the obligations of the contract. NBD.
posted by Lemurrhea at 2:18 PM on February 4, 2015

Scriptnotes an episode on this and does some interesting analysis. While sympathetic to Gettiston they don't seem to particularly but what she is saying.
posted by Artw at 5:38 PM on February 17, 2015

...and they mostly make the same argument Milan made and then recanted.
posted by Shmuel510 at 7:47 PM on February 17, 2015