Studio moves to dismiss Sony counterclaim

Likening the defendant to Rip Van Winkle, Metro-Goldywn-Mayer has moved to dismiss Sony Pictures Entertainment’s counterclaim seeking profits from 34 years of James Bond films on the ground the claim is barred by the statute of limitations.

MGM’s motion, filed late Friday in U.S. District Court in Los Angeles, argues that rights holder Kevin McClory never pursued a claim for profits from MGM and Bond producer Danjaq during the years when the studio released Bond movies ranging from “From Russia With Love” in 1963 to “Tomorrow Never Dies” in 1997.

Only after MGM sued Sony, the motion states, did McClory “awake from his long slumber and make the astonishing assertion that he was entitled to millions of dollars for a claim which could have been brought as early as 1962.”

“We received their motion and we will be opposing it. We don’t think it has merit,” said Ron Reynolds of Troop, Meisinger, Steuber and Pasich, which represents Sony and the other defendants.

The basis of MGM’s motion is that Sony’s counterclaim is barred by the three-year statute of limitations in the Copyright Act. Although on close inspection Sony’s counterclaim asks for profits for “at least to the extent accrued within the applicable limitations period as determined by the Court,” MGM cites cases for the proposition that a claim for profits is totally barred — including a claim that Sony is entitled to profits only for the last three years.

The Bond litigation began last fall when Sony announced it would make a series of new James Bond feature films with McClory, a man now in his 70s who has been described as a collaborator with James Bond’s creator, British author Ian Fleming, on what ultimately became the script for “Thunderball.”

Sony bought McClory’s rights, which typically have been viewed as the film rights to “Thunderball,” but Sony clearly has a far more expansive interpretation of the McClory rights.

MGM responded to Sony’s announcement with a lawsuit on Nov. 17 seeking a declaratory judgment that no one but MGM has the right to produce or distribute any Bond motion pictures. Sony came back in February with an answer and counterclaim asserting that McClory is the joint owner of the “cinematic” Bond character.

Based on the assertion of joint ownership, in the third of its nine counterclaims, Sony sought an accounting for some portion of the profits from the over $2.75 billion in worldwide theatrical box office receipts MGM has amassed from the Bond franchise.

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