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DEC
21
4 YEARS

Appeals court gives life to 'Last Samurai' idea theft claim

Imgthe-last-samurai2 A federal appeals panel has ruled that a court should hear a claim by two brothers who say Warner Bros. and other creators of the movie "The Last Samurai" stole their ideas after hearing a pitch and reading their screenplay.

In a Wednesday decision, the Ninth Circuit Court of Appeals affirmed dismissal of a copyright claim but said a district court was wrong in rejecting Aaron and Matthew Benay's claim that the defendants breached an implied contract.

The case will now go back to the district court for a trial. "Samurai," a Tom Cruise picture released in 2003, was a big hit, grossing nearly $350 million worldwide. Defendants are Warner Bros., producers Radar Pictures and Bedford Falls Prods, as well as director Ed Zwick and others.

The case is the latest to test the always-shifting legal standard governing how people submit ideas to Hollywood studios.
In the lawsuit, the Benay brothers asserted that after writing a screenplay also called "The Last Samurai" and registering it with the U.S. Copyright Office and with the WGA, their agent pitched it to the president of production at Bedford Falls in 2000.

According to the agent, David Phillips, he provided the script with the implicit understanding that if Bedford Falls used it to produce a film, the Benays would be appropriately compensated. He was later told that Bedford Falls had decided to pass because it already had a similar project in development. In the lawsuit, the plaintiffs point to substantial similarities between their script and the eventual movie.

Last week in a case involving the Syfy reality series "Ghost Hunters", the Ninth Circuit rejected an attempt to use a breach-of-implied-contract claim to litigate a stolen idea lawsuit. A three-judge panel ruled that the claim was preempted by federal copyright law. This time, a different three-judge panel at the Ninth Circuit has come to the opposite conclusion.

As we've noted, the seminal case in this arena is Grosso v. Miramax, involving an idea theft claim over the movie "Rounders." That opinion developed a test on whether or not a state law claim is preempted by federal copyright law: Judges must analyze whether plaintiffs allege an "extra element" that changes the nature of an action from a copyright claim to a contractual one. That test is now coming into sharper focus after these two new decisions.

The "Last Samurai" panel agrees that the "extra element" consists of an understanding between the parties that the defendant will pay for the use of the plaintiff's ideas. Here, the judges say the works "are not substantially similar" and yet conclude there was an implicit agreement between the parties over the submitted idea about an "American Civil War veteran who helps modernize the Japanese Imperial Army and fights against the samurai." There were enough similarities to continue.

A smart Hollywood agent should be as clear as possible that a submission is conditioned on payment if used. Now that the bar has been set, doing anything less would almost be cause for termination.