Reader Question: Are writers included in “nuisance lawsuits”?
Reader Question from Eric Harris:
You always hear about movie studios getting sued for films like Liar Liar, Terminator from some person that claims they had a similar idea…. in these nuisance suits, in the writer’s deal….are the writer’s protected from this? Do they sue the studio/production co. or the writer?
Funny you should ask that because…
The creators of web series about a foul-mouthed teddy bear with a penchant for drinking, smoking and prostitutes has filed a copyright infringement suit against Seth MacFarlane, Universal Pictures and the producers of Ted, the 2012 film about a foul-mouthed teddy bear with a penchant for drinking, smoking and prostitutes. Bengal Mangle Productions claims that Ted “is an unlawful copy” of its own animated teddy, who was featured in two different web series, Charlie The Abusive Teddy and Acting School Academy. The suit (read it here), filed today in U.S. District Court in Los Angeles, states that those web series aired in 2009 and 2010 on You Tube, FunnyOrDie.com and other streaming websites.
“Both Charlie and Ted reside in a substantially similar environment, including that both Charlie and Ted spend a significant amount of time sitting on a living room couch with a beer and/or cigarette in hand,” the suit claims. “Charlie and Ted each have a substantially similar persona, verbal tone, verbal delivery, dialogue, and attitude.”
I’m not a lawyer, so I’ll leave expert opinions on the matter to those who may practice law (feel free to weigh in), however let’s use this as an opportunity to talk about what is known in the business as nuisance lawsuits. Basically these refer to any lawsuits brought by people against media companies or even individual, such as a celebrity, that presumably have little to no merit. As far as TV and movies go, they are as much a part of the Hollywood terrain as palm trees.
I remember when I had an office on the Universal Studios lot talking with someone there in legal affairs who told me that every single movie Steven Spielberg had been involved in had been the subject of a nuisance lawsuit.
Why do these lawsuits happen? Several reasons.
First of all, the world is filled with greedy bastards.
Second, there are a lot of people coming up with ideas for movies and TV series. My rough estimate of how many: A zillion. With that many folks generating that many story concepts, it’s inevitable that someone is going to have an idea similar to any movie or TV series that gets produced.
I suppose there have been attempts to sue studios by some lunkheads who had a similar idea flit through their dome while plunked on their Barcolounger, yet never made an effort to get said idea to anyone in Hollywood, but more typically what happens is the people behind these lawsuits actually have some semblance of credibility that their concept may have intersected with the company in question.
Sometimes these lawsuits trace a path between a script that got submitted to an agency before a similar project was put into development. Whether the agency did or did not have an actual interface with the other project is almost irrelevant. The Hollywood acquisition and development system is a tight community, so it’s assumed that everybody knows everybody’s business. Idea enters the system in Burbank, the thinking is it must have made its way over to Culver City. No actual proof, mind you, but enough for gold diggers to sue, hoping to shake some coin from Hollywood’s coffers.
That said, I have seen reports where there are demonstrable points of connection, for example, where a writer pitched a project to a production company, then that company went on to make a movie at least somewhat similar to the original pitch. A lawsuit like that may have more legitimacy than most.
Then there are cases like Ted, where the plaintiffs have a public venue — a web series — as proof of their Intellectual Property. In effect, the Internet is a global distribution network for ideas. Combine that with the fact that Hollywood voraciously searches the darkest corners of social media to find The Next Big Thing, it is not out of the question that a certain amount of creative… er… borrowing might occur.
So this whole area of determining the source of creative inspiration is an ooey gooey thing where there can be legitimate cases of outright IP theft, but more often than not, the suits are based on little more than greed and the good ol’ American dream of squeezing dollars from profiteering corporations.
The odd thing is, we see announcements about the issuance of nuisance lawsuits, but hardly ever read anything further about them. My guess is most cases get dismissed, but I’m sure studios will sometimes pay off a plaintiff just to get them to drop the suit. Indeed, I’ll bet that’s a line item in each studio’s annual budget. Curious as to what the legal term for those funds would be…
Anyway back to your original question, Eric, as the movie Ted demonstrates, the writer can be subject to a lawsuit. That seems odd to me because in the U.S., if a writer sells an original project to a studio, ownership of the copyright transfers to them. In effect, the buyer becomes the “author”. In that case, I’m not sure about actual legal liability on the part of the writer. Again, any legal eagles out there, please chime in with your expertise.
Of more relevance to writers relative to the subject:
* Nuisance lawsuits are making it harder and harder for outsiders to get material read by Hollywood buyers. To my knowledge, no studio and most agencies refuse to consider unsolicited material. Many managers and producers are more open to queries, but will often have you sign some sort of submission waiver release form. Bottom line: Frivolous lawsuits suck because they make it harder for aspiring writers to break into the business.
* If you bring a lawsuit against a studio, whether justified or not, it’s a pretty good bet you’ll have a hard time working in the business again… that is until you write a killer spec script which everyone wants in which case all is forgiven.
* A more pressing concern is the blurry area of sweepstakes pitching wherein multiple writers pitch their takes on one project. In theory, the studio or prod co could aggregate their favorite talking points from the round of pitches, then assign the project to a writer including those notes as being of their own inspiration. This can eventually lead to each of the sweepstakes pitchers sitting in a movie theater, looking at this bit or that which seems awfully similar to what they pitched… and there’s literally nothing the writer can do about it. If challenged, the studio can always say, “We had that idea before you pitched it to us.” Besides the writer doesn’t want to get on the bad side of a potential employer by getting all pissy with them.. This reality is just something that is part of the Open Writing Assignment circus. It’s your choice to enter the big tent… or stay outside.
Readers, what thoughts do you have on this matter? I look forward to any insight you may have on the subject.
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