Production co walks legal tightrope

While imitation has always been the sincerest form of flattery, at the Asylum it also turns out to be a nice business model.

Asylum is in the business of producing “mockbusters,” very low-budget, very high-concept direct-to-DVD titles. The first one was “H.G. Wells’ War of the Worlds” starring C. Thomas Howell; it arrived in video stores the day before Paramount Pictures’ “War of the Worlds” remake starring Tom Cruise opened in theaters.

Since then, Asylum has produced more than 30 mockbusters with budgets ranging from $100,000 to $1 million. From conception through shipment, a title takes just three to four months to produce; they have included “The Da Vinci Treasure,” “Snakes on a Train,” “Transmorphers” and “Transmorphers: Fall of Man.” (Jennifer Rubin, perhaps best known for her role in the 1993 Alicia Silverstone thriller “The Crush,” is the Megan Fox analog.)

Former magazine publisher David Michael Latt and former Village Roadshow Pictures exec David Rimawi launched Asylum in 1996. The company tried distributing small indie films, then turned to releasing horror movies on video. When that niche got crowded, Asylum turned to the mockbuster and didn’t look back.

While Asylum’s primary distribution comes through rental outlets like Blockbuster, Netflix and Redbox, Asylum recently sold more than 20 of its films to Syfy; the channel will air the deal’s first title, Deborah Gibson starrer “Mega Shark vs. Giant Octopus,” Aug. 29. Asylum says it is in early talks to produce original pics for Comedy Central.

Asylum execs say their company sees annual revenues of about $5 million and that no title has failed to turn a profit.

“All of our films have made money,” says Rimawi. Mockbuster, he says, “is better than saying ‘ripoff.’ “

This begs the question: How does Asylum get away with it?

Last year, it seemed like it wouldn’t. Shortly before the release of 20th Century Fox’s “The Day The Earth Stood Still” remake, the studio sent a cease-and-desist letter to Asylum in regards to its then-upcoming mockbuster “The Day the Earth Stopped” — this one directed by and starring Howell, opposite Judd Nelson.

However, Asylum went forward with its release on Dec. 9 — three days before the Fox film arrived in theaters — and Fox never filed suit. While neither Fox nor Asylum would comment, a source familiar with the parties indicated that the matter is ongoing and has not been settled.

Loyola Law School professor Jay Dougherty, who specializes in entertainment law, says titles, names and ideas are not subject to copyright — although, as to titles and names, a case sometimes can be made under trademark law, which is designed to protect consumers from confusion as to who is providing the product.

Asylum says there should be no confusion between its products and those produced by major studios.

“When we tell people we made ‘Snakes on a Train,’ they get it instantly,” Latt says. “They don’t expect to see Samuel L. Jackson. They laugh at the idea and they laugh at the title.”

Adds Asylum partner Paul Bales, “We believe there is no confusion in the marketplace. People understand. We know this because we have access to the statistics as terms of rentals; it’s not made up of people that made a mistake. If they did, they would ask for their money back. That doesn’t happen.”

Some Asylum viewers disagree. On Netflix.com, one “Stopped” renter wrote: “Really atrocious; must have cost $50,000 to make. I gather from the other reviews that this studio specializes in cheap rip-offs of real movies. If I understood what this was I would have never watched it, and I won’t watch any of their other products.”

Rimawi says these titles are nothing more than good-natured ribbing at the expense of Hollywood tentpoles.

“When porn parodies a film, it’s a compliment,” he says. “It’s the same with Asylum. We made a handheld-camera film like ‘Cloverfield,’ called ‘Monster.’ We heard a rumor that the editors of ‘Cloverfield’ had the poster for our film hanging in the editing bay.”

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