Commentary: Madea goes to court, so plaintiff calls for Marshall law

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How does one of Hollywood's most successful players end up living for nearly two weeks at a Holiday Inn Express in East Texas?

Tyler Perry can blame the peculiarities of federal copyright litigation for a sojourn this month to the dusty city of Marshall. With a population of 25,000 and power lunch spots like the Blue Frog Grill, it doesn't earn many comparisons to the entertainment hubs of Los Angeles and New York, or even to Perry's native Atlanta. But the home of the annual Fire Ant Festival has become a virtual company town for high-stakes intellectual property cases because of its speedy docket and a reputation for juries prone to large plaintiffs' verdicts. California-based TiVo, for instance, picked the Eastern District of Texas for its make-or-break DVR technology lawsuit against EchoStar and was rewarded with a $73 million jury award in 2006.

As popular as Marshall is for patent battles, however, so-called "soft IP" cases like copyright remain a novelty, especially one involving an entertainment mini-mogul whose films and plays have grossed around $1 billion in boxoffice and DVD sales.

Forget "Madea Goes to Jail." This was "Madea Goes to Court."

Perry and Lionsgate, which releases his films, were sued in May 2007 by Donna West, a Dallas playwright. She claimed that Perry stole portions of her play "Fantasy of a Black Woman" to create his 2005 breakthrough film "Diary of a Mad Black Woman," which introduced moviegoers to Perry's plus-sized alter ego, Madea. West claimed the infringement entitled her to all the profits from the film, which grossed about $50 million domestically.

Under copyright law, West was required to show that her play and Perry's film are substantially similar and that Perry had access to her work, so she argued among other things that the titles are similar, both are tales of divorce among black couples and both feature a scene involving an abusive man becoming paralyzed. On the access issue, West claimed she performed the play three times in 1991 in a Dallas theater and that the theater's manager could have slipped it to Perry in 1998 when he presented his plays there.

"That would have meant that Tyler had access to every play at every theater everywhere around the country," says Veronica Lewis, the Dallas lawyer who set up camp in Marshall as Perry's lead trial counsel with help from Team Perry, which includes his entertainment lawyer Matt Johnson and personal counsel John Hudson as well as Lionsgate's top legal execs and the studio's lead trial lawyer, Los Angeles' Lou Petrich. "That would have put artists at great risk."

Given the tenuous nature of the access argument, the matter probably should have been dismissed long before trial, as many idea-theft cases are in Los Angeles. But L.A. is not East Texas, and even though Petrich won a case there last year for Artisan Entertainment against a woman who claimed that her screenplay was stolen to make the 2001 Jean-Claude Van Damme vehicle "Replicant," there isn't much recent precedent in the 5th Circuit for copyright cases involving movies. So Judge Leonard Davis let the matter go to a jury, making this Lionsgate's first copyright trial in at least a decade.

"We were certainly aware of the history of cases in Marshall, and we took that into consideration in preparing our defense," says James Gladstone, Lionsgate's executive vp business and legal affairs. For instance, both sides were permitted only 12 hours to present their cases, requiring witness testimony to be short and sweet. Jurors were treated to a private showing of Perry's "Diary" and a reading by West of her play. Screenwriter Bob Gale ("Back to the Future") made the trek to one of the only federal courthouses with free and ample parking to serve as an expert witness for Perry. Gale explained the screenwriting process and how the two works weren't all that similar.

As long as there are successful films, there will be writers who believe their screenplays have been stolen to make them. But in the end, despite its reputation, the East Texas jury took less than two hours to select a foreman and return a defense verdict for Perry.

"I have nothing bad to say about Marshall," says Gladstone, who awaits a likely appeal. "We liked everyone. True Southern hospitality."
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