With a court hearing looming on July 28 on their effort dismiss the MGM-Danjaq case, Universal and screenwriter Aaron Berg, the author of the “Section 6” script, challenge the claim that the mere acquisition and copying of the script as part of the development process constitutes infringement and a ripoff of the 007 franchise.
“Since the movie may never be made and, if it is, the screenplay will be very different from the existing one about which plaintiffs complain, there is no need to use a significant amount of judicial and legal resources at this point,” Universal said in a filing with the U.S. District Court in Los Angeles.
MGM and Danjaq filed suit in April, claiming that the “Section 6” script, set around the formation of MI6 after World War I, nevertheless was a knockoff of the 007 franchise. They have contended that Universal “directly infringed” on their copyrights by reproducing Berg’s “Section 6” screenplay, distributing copies to entice talent to the project, and then authorizing a revised screenplay that also is infringing.
But in its latest brief, Universal argues that the copies that have been made as “de minimis,” or internal in nature, few in amount and “dwarfed by the cost to the public and the litigants of proceeding with the case.”
“If Universal ever decides to make the movie, and Plaintiffs claim that even the revised screenplay infringes, there would be something to argue about, and the case can then be filed,” Universal said. The studio said that it has assured MGM and Danjaq that the final project will not infringe on the Bond movies.
Universal also challenged the MGM-Danjaq argument that the revised screenplay constitutes infringement because it would be a “separate derivative work based on the Bond works.” No revised screenplay has been created, U contends, and even if it had been by now, it could still use non-infringing elements of Berg’s original works.
Berg, meanwhile, is arguing that the characters, plot, settings and other elements of his screenplay are not “substantially similar” to the modern world James Bond elements that would be protected by copyright. His lawyers argue that MGM and Danjaq have “cherry-picked from the entire James Bond oeuvre” in making their claim. The screenplays “few short phrases possibly evoking the Bond works” are non-infringing as they fall under fair use or the de minimus doctrine, his brief says.
“Using Plaintiffs’ egregiously incorrect approach, ‘Inglourious Basterds’ would infringe ‘The Dirty Dozen,’ ‘The Sopranos’ would infringe ‘The Godfather,’ and ‘Titanic’ would infringe ‘The Poseidon Adventure,'” his brief states.
MGM and Danjaq are represented by Robert Schwartz of O’Melveny & Myers and Marc Becker of Quinn Emanuel; Universal is represented by Bert Fields and Aaron Moss of Greenberg Glusker. Berg is represented by David Aronoff and Amber Henry of Lathrop & Gage.