December 24, 2013 8:34am PT by Eriq Gardner
'The Expendables': Writers Guild Tribunal Evolves Into Fraud Lawsuit
Sylvester Stallone wasn't alone in writing the screenplay to The Expendables, the 2010 mega-hit film about mercenaries starring a group of action all-stars.
At least that's what the credits say. Instead, the film and its sequels have also been credited to a co-writer, Dave Callaham. But on Monday, nearly five years of secret fighting over the film's authorship in arbitration erupted into a fraud lawsuit filed in Los Angeles Superior Court.
Producers of the film including Nu Image, Millennium Films and Alta Vista Productions are suing the Writers Guild of America, West, as well as Callaham, whose other notable work includes Doom and the upcoming Warner Bros. blockbuster, Godzilla.
According to papers filed in court, Callaham committed "subterfuge" in the midst of a 2009 screenwriting credit arbitration by representing that he was entitled to a sole "Written By" credit. The outcome of the arbitration was that Callaham received a sole "Story By" credit and received first position in a "Screenplay By" credit -- ahead of Stallone. But now the producers say that Callaham withheld key evidence before the WGA tribunal.
Among Callaham's emails allegedly turned up is one from August 17, 2009 during the film's development where the writer claims the script for The Expendables "is F---ING AWFUL … I am ASTOUNDED at how bad this is. I want you to know that it's nothing like what I wrote."
The following day, Callaham is said to have written two more colleagues, saying in email, "Put it this way: the idea and very loose structure [of The Expendables] is mine. Everything else ... I plead the fifth. Or, to put it another way, if I get sole credit like I am asking for … it would be A MIRACLE."
Callaham not only got credit, but also received a "writing credit bonus" of $102,250. But perhaps more significantly, the arbitration ruling potentially entitles him to have "separated rights," pertaining to spin-offs. The 2009 arbitration was followed by one in May, 2013, where Callaham and his company claimed $175,000 as a "sequel payment" for Expendables 2. Callaham wants the money plus significant interest. Plus, he's seeking declaratory relief on Expendables 3 and future sequels.
The lawsuit filed by Nu Image traces the controversy back to 2002 when Callaham made a "Blind Commitment Agreement" with Warner Bros. over a script entitled Barrow. For that, Callaham was paid $250,000.
Stallone later got to work on Expendables, and in the course of his work, he "reviewed Callaham's script entitled Barrow and based part of the story for The Expendables on Barrow," according to Nu Image.
The production company says Stallone believed Callaham should get a shared "Story By" credit, but because Stallone was also a production executive (as well as director) on Expendables, WGA rules provided for automatic arbitration when Callaham demanded more.
The plaintiffs now say that Callaham has made false representations during the arbitration, damaging them. Represented by attorney Charles Coate, the plaintiffs are suing for fraud, unjust enrichment and equitable indemnity and seeking the return of money. Plus, the plaintiffs are seeking declaratory relief including that Stallone be given sole screenplay credit for The Expendables and that Callaham not be entitled to money for sequels. The lawsuit (read here) says that the WGA should discipline Callaham by its own rules.
We've reached out to Callaham's reps and will update if there is any response.