'Rounders' dispute stirs pitch pot

An upcoming trial in Los Angeles may give Hollywood screenwriters the upper hand in disputes over whether their ideas have been stolen.

The case stems from Miramax’s 1998 film “Rounders” and Jeff Grosso’s suit alleging the mini-major ripped off his ideas about the world of underground poker from his 1995 script “Shell Game.”

Key issue in the Grosso suit, which goes to trial in July, is whether a contract is created when an executive hears a pitch or reads a screenplay — and there’s the expectation that if the idea gets used, the writer will be paid.

Grosso’s case could be a landmark because it differs significantly from typical screenwriter suits alleging copyright infringement. Usually, when writers convinced their work has been stolen face a more difficult task in proving copyright infringement by establishing that the film was taken from the script’s actual plot, dialogue, setting or characters.

But Grosso achieved a key breakthrough in a 2004 federal court ruling. The 9th Circuit Court of Appeals turned down Miramax’s motion to dismiss Grosso’s claim that it violated its implied contract with Grosso — even though a federal court had dismissed the suit’s copyright infringement allegations.

“A contract sometimes may be implied even in the absence of an express promise to pay,” wrote Judge Mary M. Schroeder in the ruling for the three-judge panel.

Ruling meant that Grosso could proceed in state court with his lawsuit alleging Miramax breached his implied contract.

Grosso, a freelance writer and poker player, submitted the “Shell Game” script to Gotham Entertainment in 1996 after Gotham, which had a first-look deal at Miramax, announced it accepted unsolicited scripts. He filed suit three years later against Miramax, producers Ted Demme and Joel Stillerman and writers Brian Koppelman and David Levien.

Studios asserted in an amicus brief that the ruling could have a negative impact by discouraging the exchange of ideas and lead to “unnecessary litigation and inconsistent results.” But the appeals court and the U.S. Supreme Court refused last year to rehear Miramax’s appeal.

Daniel H. Black of the Greenberg Traurig law firm said the Grosso ruling has altered how studios and nets conduct their business with screenwriters, noting it’s more likely for writers to be required to sign a release to make it clear that there’s no implied-in-fact contract.

Black explained the implied-in-fact contract’s created under three conditions — the plaintiff has to perform the work, has to disclose that it’s for sale and has to make the disclosure under such circumstances that a studio would accept the work knowing there would be terms and conditions with a value attached to the work.

“In other words, the defendants clearly had to know that if they used it, they would have to pay for it,” he explained. “And this is a totally different avenue from copyright protection.”

Koppelman, who received screenplay credit for “Rounders” with Levien, told Daily Variety that Grosso’s suit is baseless.

“David and I wrote every single word of that screenplay except for the parts that Edward Norton ad-libbed,” he added. “And we wrote it as a spec, not a studio assignment.”

Miramax has filed for a dismissal of the Grosso’s claim in state court, and a spokeswoman pointed out that he’s testified he had no contact with the mini-major or the creators.

The concept of an implied contract protection for screenwriters is a potentially powerful new tool, reflected in a pair of recent federal lawsuits filed in Los Angeles. Scribes have alleged the screenplays for Warner’s “The Last Samurai” and Focus’ “Broken Flowers” not only infringe on the writers’ copyrights but also are in breach of implied-in-fact contracts.

The writers — brothers Aaron and Matthew Benay in the “Samurai” case, Reed Martin in the “Flowers” case — are contending that after they pitched their ideas to producers, they weren’t paid even though the producers went ahead and used those ideas to make a film. Attorneys for defendants deny the allegations.

“This always happens after successful motion pictures are released,” said George Hedges, who’s repping defendants in the “Samurai” suit.

Los Angeles attorney John Marder — who represents Grosso, Martin and the Benays — agrees that studios have become more cautious in dealing with writer submissions. He asserts the Grosso ruling is a milestone in protecting writers because federal copyright law excludes ideas.

“Thus, networks and studios have felt free to use these ideas to their great financial benefit without compensating or crediting the owner,” he said. “This grave injustice has now been cured.”

In the “Last Samurai” case, the Benay brothers sued Warner Bros., Radar Pictures, Bedford Falls and producers Marshall Herskovitz and Ed Zwick in December. The duo alleged they had orally pitched Zwick and Herskovitz in 2000, submitted their screenplay and were told there was no interest in it.

The Benays then sold the screenplay to New Regency, but that deal ended when Warner and Bedford Falls announced in 2002 that production would commence on “Last Samurai” with Tom Cruise starring.

The brothers allege their “Last Samurai” submission resulted in the transformation of the Bedford Falls project “West of the Rising Sun” from a story about Japanese cattle ranching to one about a Civil War vet commissioned by Japan’s emperor to train a newly formed imperial army.

In the “Broken Flowers” case, Martin filed suit in March against Universal, director Jim Jarmusch and manager Glenn Rigberg, alleging Martin’s screenplay “Heart Copy” was identical to that of the film. Suit alleges Martin’s screenplay and the film both center on a taciturn and presumably childless protagonist who receives pink envelopes in the mail and tracks down five former girlfriends.

Martin’s suit said Rigberg agreed in 2003 to submit the screenplay to studios and that Martin recommended that Bill Murray play the lead.

Jarmusch began work on “Broken Flowers” in 2004, and the film debuted in May 2005 at Cannes, with Jarmusch asserting he had written the screenplay. Martin seeks more than $40 million in damages plus restitution.

The “Samurai” suit is the second such action over the authorship of the screenplay. In 2004, Michael Alan Eddy filed suit against Warners, the producers and the Writers Guild of America West, alleging the WGA had failed to properly represent him by refusing to allow Eddy to participate in the credits arbitration.

A federal court judge dismissed Eddy’s suit in October 2004, and the case is now on appeal.

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