Tess Gerritsen's Gravity

[Yoly]

I don't know if you guys have seen this or not. In 1999 Tess Gerritsen sold the film rights to her book titled Gravity about a female medical doctor/astronaut who is stranded aboard the International Space Station after the rest of her crew is killed in a series of accidents.

Then in 2009 Alfonso Cuaron wrote his original screenplay “Gravity” about a female astronaut who is the sole survivor after her colleagues are killed by satellite debris destroying their spacecraft.

She ended up suing Warner Bros. This is one of her posts about it.

My Gravity lawsuit and how it affects every writer who sells to hollywood
http://www.tessgerritsen.com/gravity-...

Today I saw an article in The Guarding on the same topic
http://www.theguardian.com/film/2015/...

What do you guys think? Would also love to hear the opinion of those of you who are writers.

[J.S.]

I saw that and, as a writer, I'm a bit confused. I've read through lots of lawyerly writings (but IANAL) on various topics related to copyright and I am a bit confused and haven't read through the ruling yet. In Gerritsen's post it seems to imply that she contracted with New Line for the film rights to her book. Then she says that Warner Brother's bought New Line and thus, acquired the IP rights to her book. Except... those rights should be tied to the contract so I am confused how they can exploit the rights without honoring the contract. I imagine that I am missing a key legal argument here since I only have the lay version and holy crap contract law can be complicated.

Now, one thing she says is that this is not about copyright but about contract execution... but that's really one and the same. She only mentions film rights so I imagine there wasn't a full copyright transfer, just the rights to exploit the film versions of the book, so I don't know how that squares with the 'this is only about the contract' part of the post.

I just need to dig into this because she seems to imply that you can lose the right to exploit rights contracted to an entity if that entity is acquired while allowing the acquiring entity full use of those rights without compensation and that doesn't make any kind of sense. That's kind of contract 101 as I understand it.

I would think that this would have to actually be about copyright and she must be claiming that Gravity(the movie) is based on her book. Even though she implies that's not it in the post. ANd further she'd have to infer that the contracts she signed with New Line are meant to be valid with Warner Bro's... but as I understand it, all the contracts would just become void and she'd have to resign with Warner to get that deal back. So in the end it really would just be a copyright claim that they took her book and made a movie based off it without her authorization. Simply, good old-fashioned copyright infringement. At least that's what I can see from one blog post and not reading any of the actual filings :)

[Gary]

She would appear to have a stronger argument/case than did Art Buchwald when he sued Paramount (and won) over Coming to America. The person who was attached as a director to the "based on" adaptation of her book turning around and writing the screenplay for a film with the same title, similar leading character, and comparable plot is more than a little fishy. Seems like that would fall under the same contract.

That said, it'll probably take 3-5 years and $1-2m in lawyers to get it done....

[Owen]

Yep, this is odd. From the article: "Please note: this is not a case of copyright infringement. Warner Bros., through its ownership of New Line, also controls the film rights to my book. They had every right to make the movie — but they claim they have no obligation to honor my contract with New Line."

It does make sense that this is not copyright infringement: they assumed the film rights from New Line. How they can assume the rights, but not the contract obligations, I don't understand. Warner Bros is treating the rights as something they own -- period. The contract was with New Line, which no longer exists and not them -- so they don't have to honor it? If they didn't like the terms of the New Line contract, it would seem that they would either have to negotiate a new contract or surrender the rights.

I wonder how the contract was written and if there was some strange clause in it, but it seems more likely that Warner Bros is simply trying to see what they can get away with here: the "Nothing is illegal until a court rules on it" mentality. Given all shady (to say the least) the things major studios do, this is hardly surprising.

It will be interesting to see what happens when she resubmits her case. (Though I'm wondering if her lawyers aren't the best, given they botched this the first time.)

[J.S.]

Here's a good link explaining things a bit more in depth http://www.courtneymilan.com/ramblings/ and it seems like Gerritson is arguing that what happened was that New Line started producing the movie she was contracted for, was bought by Warner Bro's, and Warner continued making the movie while Warner claims (I think) that they made a separate movie not based on her book. Now Gerritson actually left a comment on this post :

"Courtney, I am unable to sue for copyright infringement because I do not own the film rights. New Line Productions does, because I sold them the rights, but with stipulations. The only entity who could legally sue for infringement is the owner of those film rights, which is New Line — and they would have to sue their parent company Warner Bros. Which of course they will never do. Thus we were forced to sue for breach of contract, which is the only option open to me.

Do you see how this leaves an author with absolutely no remedy, since WB can indeed use intellectual property owned by New Line, and can get away with it, because New Line will never be in opposition to its parent company?"

So that's a good reason why she isn't going after the copyright issue... but it does bring up a good point. If you sell the rights to a party that lets someone else infringe them, then yeah, you don't have much recourse if you can't force the new entity to abide by the original contract. So Warner Bro's is basically being able to get away with infringement by virtue of controlling the entity that is legally entitled to seek relief. Ouch, yeah, but I get the feeling that all contracts are vulnerable to that. Imagine you contract for English language rights to a company A. Another company comes along and buys company A and still keeps the old contract with you but copyies your book and sells it in English. Technically Company A would have to sue Company B for infringment but since Company B now owns Company A, that won't happen. Company B now makes $100Billion on your book... is there a legal argument the author could make to force Company B to stop infringing?

[Owen]

J.S. wrote: "Here's a good link explaining things a bit more in depth http://www.courtneymilan.com/ramblings/ and it seems like Gerritson is arguing that what happened was that New Line started producing the mo..."

If I'm following this (and I know it's dubious to apply "common sense" to a legal case), that makes sense and in that regard, Warner Bros is pretty much free to infringe on the copyright, because New Line will not exercise their rights over it. In a case like this, I doubt there is a legal principle to would force the rights holder to sue for the benefit of a third party (which the author became when she sold the rights). When I sell something, I lose control over it, unless the terms of sale allow me to retain some rights. That seems to be what's going on here? That's essentially a contract issue, as the contract would stipulate what rights are retained.

I do wonder what effect it has if Warner Bros denies (as it seems they did) they stole the concept. If Warner Bros said, "Yeah, we stole this. Ha Ha. New Line, sue us. Go ahead." And New Line says "Nope. You did steal it, but we don't care," that might present an insuperable problem.

But if Warner Bros lies, that implies consciousness of guilt, which implies that they believe they had obligations under the original contract they chose not to fulfill, and so lied about it. A court might well take that argument seriously, because intent matters. If you act as though a contract is valid and binding at one point, you can't just change your mind later to argue that it never was. We'll have to see how this goes.

But the answer would seem to be, never sell your work for anything less than what you want upfront, in cash, and then don't worry about it. So if you think your work might sell for $100 billion, get $10 billion net (makes them pay any and all taxes and fees) and be happy. If enough people did this, things would change. Because the studios (and publishers) who buy rights produce nothing. Only writers produce. Writers need to understand that better. I think that's the real lesson here.

[J.S.]

Well, it seems like all of the film rights were sold to New Line and therefore they now control all legal recourses related to those. I still haven't read the actual filings but based on my 5 minute look at her comment there it seems like the screen writer and director, Alfonso Cuaron became attached to Gravity when it was being produced by New Line. New Line gets bought by Warner Bro's and then Warner Bro's makes their version of Gravity with Cuaron so it looks like Gerritsen has to bypass the copyright claim (due to not being able to force New Line to act) and is instead arguing that since Cuaron was attached to the New Line version, the Warner Bro's version should be held to the same contract as it's the same movie that had been optioned from her book. Which I have to admit, is a pretty novel approach but I can see why the judge would have trouble buying it. The leap would have to come from essentially assuming that one person working on a movie at a studio went on to work on a similar movie at a another studio and that this was enough to prove that the contracts, in the absence of any other evidence, had been transfered and therefore Warner Bro's was now responsible and owed residuals (or partial profits or whatever on the movie proceeds).

From a different article, the judge commenting . "Similarly, Gerritsen does [not] detail how it is that WB exercises complete management, control, ownership and domination over New Line and Katja. Without a factual basis, her conclusory allegations are insufficient." Unfortunately, just because it appears that WB 'should' be able to tell it's owned units, New Line, what they are going to do, if you don't demonstrate it in court, the court has no reason to grant your assertion. So the judge is basically saying that since copyright infringment isn't alleged, substancial similarity isn't an issue (as Gerritson also states) the sole issue is whether autonomous units that operate under contract transfer that responsibility to their owning organizations and the response seems to be that they don't if the owning org doesn't directly control them.

Still, I think the underlying issue is a copyright issue even if that's not a viable road of attack in this case. But maybe it'll make new types of contracts viable where rights revert when companies are bought, or if infringment happens or something...

[J.S.]

Owen wrote: " If Warner Bros said, "Yeah, we stole this. Ha Ha. New Line, sue us. Go ahead." And New Line says "Nope. You did steal it, but we don't care," that might present an insuperable problem. ."

Based on the Judges decision "Nor can Gerritsen establish that the Warner Bros./New Line/Katja consolidation involved the transfer of assets for the fraudulent purpose of escaping liability. The judge says there are no facts to support this allegation." So it does look like this issue was at least considered. Perhaps if, as stated above, WB just came right out and said it and it was on record and New Line's response was on record, that might change things. Because then it makes it seem like claiming that they don't have to abide by New Line contracts but get to use New Line assets DOES amount to fraud and breach of contract.

[Owen]

J.S. wrote: "Based on the Judges decision "Nor can Gerritsen establish that the Warner Bros./New Line/Katja consolidation involved the transfer of assets for the fraudulent purpose of escaping liability. The judge says there are no facts to support this allegation." So it does look like this issue was at least considered..."

There was that note that the judge gave them 20[?] days to refile. To me that sounded like the judge was spanking Gerritsen's legal team for making allegations that they failed to substantiate. A dismissal of this type is not so much a "you don't have a case" as "you may have a case -- now make it". Obviously, I have an incomplete understanding, but it appears the judge laid out what Gerritsen's team needs to do. It remains to be seen if they can do that.

[J.S.]

Owen wrote: "There was that note that the judge gave them 20[?] days to refile. To me that sounded like the judge was spanking Gerritsen's legal team for making allegations that they failed to substantiate. A dismissal of this type is not so much a "you don't have a case" as "you may have a case -- now make it". Obviously, I have an incomplete understanding, but it appears the judge laid out what Gerritsen's team needs to do. It remains to be seen if they can do that. "
No, I think you are right, the judge is giving her lawyers a chance to make their case that WB controls enough of New Line to possibly assume the duties of the contract or for her to make the case that they tried to skirt the contractual obligations to the money that they would owe from the original New Line Gravity contract. In this case the 10Million that Gerritsen is asking for is probably less than the original contract would have given her so even if they settled for that, they would be getting a good deal (from their point of view). I admit, it sounds an awful lot like she's getting screwed here, and all of the little coincidences are just a little bit too coincidency. But, like they always say, it's not what you believe, it's what you can prove that matters.

[Yoly]

Too many "coincidences", I hope they don't get away with it.

I wonder if news about this lawsuit has increased sales of her book Gravity. When I read the article I thought it was something I would enjoy and went to add it to my to-read list and saw that I had already added it on 2013. Wonder if many people are discovering this book because of this lawsuit based on the popularity of the movie.

[Gary]

Yoly wrote: "I wonder if news about this lawsuit has increased sales of her book Gravity."

Oh, now, that's an interesting point.... It could very well have that effect, and that might be why she's doing it at all. A lot of the money that author's make from a film adaptation comes from boosted sales of the book. They get paid by the studio, of course, but the film often acts as a massive ad campaign for the novel.

In this case, it looks like they cut her out of that process, and suing them might be a way of getting some of that back. She's already lost out on the "based on" aspect, so it's not nearly as good, but she could get some of that publicity.

[Owen]

Gary wrote: "Yoly wrote: "I wonder if news about this lawsuit has increased sales of her book Gravity."

Oh, now, that's an interesting point.... It could very well have that effect, and that might be why she'..."

She might see some benefit, depending on widely reported this is, but I wonder if it will even cover the legal costs.

[Gary]

I doubt she'll get a lot out of it. If she has a couple of friends who are lawyers then she'll be employing them for a while, and if she's lucky a settlement will cover their fees. She might even get a few frozen dinners out of it.... If she makes a really big splash, though, the sales on her next book might be impacted. It's a crapshoot.

[Yoly]

She gave up :(

http://www.tessgerritsen.com/gravity-...

[Gary]

That's a particularly odd set of circumstances, but I suspect it'll be an increasingly more common one now. If film companies can dodge copyright with a little corporate shell game then copyright is effectively gone. That's the kind of thing corporations do almost automatically nowadays.