9:09am PT by Eriq Gardner
Doubts Raised In Court Over Secrecy of Movie and TV Script Summaries
On the defensive after being accused of unfairly selling access to a website that contains "breakdowns" of TV and movie scripts, Frank Moran, Louise Yanofsky and Steven Rubin are heaping scorn on the position that breakdowns amount to trade secrets or constitute proprietary information.
The three are being sued in New York by Breakdown Services, a company that gathers information about entertainment projects in development through casting directors. The defendants are alleged to have committed unfair competition and tortious interference and are attempting to fend off a motion for preliminary injunction that would stop them from providing third parties with access to the website and disseminating any analyses of scripts obtained from the plaintiff's secure website.
Although the dispute isn't directly connected to the Sony hack, it's worth pointing out that David Boies has threatened the media with ramifications for disseminating Sony intellectual property and trade secrets. The Breakdown case might not really turn on the issue, but what constitutes proprietary information in Hollywood? Clearly, the screenplay of the upcoming James Bond movie Spectre is protected, but how about a description of what's in the movie?
According to Breakdown Services, its own depository of script summaries are deserving of great confidentiality.
"Casting directors want to assure that qualified professionals are submitting suitable candidates with the necessary qualifications so that they are not overwhelmed with submissions by unqualified or inappropriate candidates," says Breakdown Services. "In addition, casting directors are concerned that otherwise, the information may be leaked to 'spoiler' websites that publish information about the plot and characters in movies and television shows before the movies are released or the shows are aired."
In a memorandum opposing a preliminary injunction, the defendants raise doubts about whether Breakdown Services has a likelihood of success in its legal claim of unfair competition because they allegedly can't show any misappropriation of something valuable.
"Breakdowns, by their very nature, are neither trade secrets nor 'proprietary information' under the law, by sheer virtue of the fact that they are disclosed to thousands of people each and every day," state the defendants' papers. "Moreover, any commercial value which breakdowns possess would be entirely nullified if they were not so widely disclosed. Breakdowns only have value to the extent that a casting director would use them to cast actors for a role and to the extent that talent agents or managers are willing to pay to use them so that they can obtain employment for their clients."
In the lawsuit, Moran, Yanofsky and Rubin are alleged to have misled talent managers and taken advantage of vulnerable actors desperate to learn about jobs in the industry. There's suggestions in the lawsuit that actors were charged for representation and given access to the breakdowns.
The defendants say that Breakdown Services hasn't met their burden of showing irreparable harm — another factor that determines whether an injunction is issued.
Moran, Yanofsky and Rubin argue against the concern that reporters will post "spoilers" should they get these summaries.
According to the memorandum, "It's not clear … that actors are more likely to release spoilers than any agent, and any concern with confidentiality could arise only after Breakdown Services established the boundaries of their confidence. [Breakdown founder Gary] Marsh seems to occupy himself with ensuring there are no other options available in the industry, and yet a trivial response to his fears would seem to be extending access to the Breakdown Express site to actors."
The defendants don't address the other alleged irreparable harm — that according to the plaintiff, "if the breakdowns are distributed directly to actors, without the 'gatekeeper' function performed by licensed talent agents and personal managers, the casting directors will be inundated with literally thousands of submissions by actors for each role being cast, regardless of the applicant's lack of qualifications or suitability."
But whether this is at all germane to the dispute is another question.
"The arguments are a misdirection," says plaintiff's attorney Helene Freeman at Phillips Nizer. "It's the platform that's proprietary. Would you let someone break into your house and take something from your kitchen? The aggregation of the information is the business and if you say people freely can breach the security and sell that for their own benefit, it destroys the business."