| | Lawyer Is Upping the Ante in Claims of Idea Theft in Hollywood
LOS ANGELES, July 26 — In December the screenwriters Aaron and Matthew Benay filed a lawsuit here accusing Warner Brothers and others of stealing the idea for “The Last Samurai” from their screenplay of the same name. Three months later, another writer, Reed Martin, sued Focus Features and the director Jim Jarmusch, among others, saying they lifted “Broken Flowers” from his work. Shortly before that, yet another aggrieved writer, Maurice Fraser, filed suit against NBC Universal, saying it had taken the concept for its upcoming reality show “World Vision: An American Anthem” from his pitch “Battle of the States.”
What the three legal actions share — other than the writers’ not uncommon belief that someone in Hollywood has robbed them — is a connection to John A. Marder, a lawyer who has been quietly upping the ante when it comes to messy accusations of idea theft.
The latest in a long line of gadflies who contend that it’s their job to keep the studios honest, Mr. Marder has spent the last two years capitalizing on having won a federal appeals court decision that makes it easier for writers who pitch an idea or circulate a script to make a claim of theft stick.
The decision, in a case in 2004 called Jeff Grosso v. Miramax Film Corporation, held that studios, producers and anyone else who considers an idea offered for sale can’t rely on the federal Copyright Act in fighting claims that they have entered under an implied contract to buy it for fair value if it’s found acceptable. That ruling, by the United States Court of Appeals for the Ninth Circuit in California, gave writers a way to sidestep the difficulties of a copyright claim — and opened the door to a growing stack of suits that are keeping Hollywood’s legal machinery even busier than usual.
“It’s made things incrementally worse, but things were bad to begin with,” said George Hedges, a lawyer who represents Warner in the “Last Samurai” case.
As Mr. Hedges sees it, the Grosso ruling did not so much revolutionize entertainment law as give unfortunate encouragement to those who come out of the woodwork claiming theft after any major film release. “There’s nothing more bitter than a scorned writer,” he said. “They are so frustrated with the environment and their inability to get projects sold, and they have this desperate quality to them.”
For Mr. Marder and his colleagues at the Manning & Marder, Kass, Ellrod, Ramirez firm, however, the pursuit of claims based on the Grosso ruling is shaping up as something of a crusade on behalf of the perennially oppressed.
“I’ll fight to the death for writers, and I know this part of the law better than anybody,” Mr. Marder said during an interview at his firm’s Art Deco offices in downtown Los Angeles. About the bitterness, at least, he agreed with Mr. Hedges.
“The people I deal with are emotionally scarred by the fact that something was stolen from them,” Mr. Marder said. “It means a piece of yourself was stolen.”
Oddly enough, Miramax appears to have won the Grosso case when a state court judge earlier this month threw out a claim that a pair of writers had stolen the idea for the movie “Rounders” from the writer Jeff Grosso’s 1995 screenplay “The Shell Game.” But Mr. Marder said he expected to appeal that decision. And his earlier victory in the appeals court laid down a principle that has complicated an already tense relationship between those who write for the screen and those who buy their wares.
In an unsuccessful brief opposing the 2004 appellate decision, one lawyer went so far as to predict that studios might close the door to all but well-known insiders. “Companies engaged in the development of entertainment programs may well find it necessary to refuse all contact or submissions from unknown writers — chilling the exchange of ideas, limiting the career prospects of many aspiring authors and potentially depriving the public of the production of new programs,” wrote Kelly Sager on behalf of Viacom Inc., parent to Paramount Pictures and other entertainment operations.
“To say these lawsuits are somehow a cancer on creativity is hogwash,” countered Pierce O’Donnell, another gadfly lawyer who made his mark by successfully suing Paramount for having lifted the idea for its 1988 movie “Coming to America” from the columnist Art Buchwald. “I don’t know a single writer driving a Mercedes because he or she unfairly held up a studio for stealing their intellectual property.”
Mr. O’Donnell eventually wound up adding MGM and other studios to his client list — something Mr. Marder, who relishes his role as an industry outsider, said he would never do. “I don’t socialize with them, and I can’t be bought,” he said. “All these guys are saying that I’m not in their club, and they’re right.”
Mr. Marder, 46, was born in Massachusetts but grew up in Athens after his father was appointed the military attaché to the United States Embassy. “My dad’s predecessor had been assassinated by Greek terrorists, so we always had bodyguards in front of our house growing up,” Mr. Marder recalled of the 18 years he spent in Athens. Mr. Marder, who speaks fluent Greek, attended the American Community School, where he became lifelong friends with the actor Greg Kinnear.
Sixteen years ago, Mr. Marder began carving a niche among unhappy writers by representing Mr. Kinnear in his lawsuit against the American Broadcasting Company, alleging that the network had stolen the idea for the hit television show “America’s Funniest Home Videos” from him. “Greg is a very level guy, but I have never seen him more emotionally upset than by what happened with ‘America’s Funniest Home Videos,’ ” Mr. Marder said. “We eventually won on appeal. The case was similar to Grosso, but there wasn’t the same effect because it was never published.”
Some industry lawyers have recently tried to minimize the impact of what has become Mr. Marder’s signature case — and, indeed, the lawyer is almost certainly facing a long fight in the “Last Samurai,” “Broken Flowers” and “World Vision” suits, all of which are being vigorously opposed.
“I haven’t seen that it makes any practical difference,” said Lou Petrich, the lawyer for Miramax who got the Grosso case dismissed this month. “I acknowledge that after the Ninth Circuit decision there was a lot of talk that the sky was falling, but it hasn’t so far.”
But Mr. Marder believes otherwise, saying the number of claims speaks for itself. “There’s a problem with the system when every time the studios release a movie, they get a bunch of claims,” he said. “There can’t be that many crazy people in the country.”