March 02, 2012 8:00am PT by Eriq Gardner
'Last Samurai' Litigation Set for Trial March 20 With Millions at Stake
The trial over whether Ed Zwick, Marshall Herskovitz and Bedford Falls stole the ideas for the 2003 Tom Cruise film The Last Samurai has been set for March 20 in a Los Angeles federal courthouse. Although Warner Bros. was dismissed as a defendant in the lawsuit brought by screenwriters Aaron and Matthew Benay, the case figures to be a much-watched affair that explores the way film studios acquire and develop screenplays. The plaintiffs are promising to put on quite a show in what Aaron Benay is touting as “one of the biggest idea theft cases in history.”
The parties have allotted 90 hours for the coming trial.
The Benay brothers plan to show that they wrote a script titled "The Last Samurai” between 1997 and 1999 about an embittered American Civil War veteran who travels to Japan to help train the newly-formed peasant Imperial Army at the request of the Emperor. They intend to tell a jury how their agent, David Phillips, orally pitched the WGA-registered screenplay to Bedford Falls executive Rick Solomon, and that within days of their submission, director Zwick had transformed his own working film project, then titled "West of the Rising Sun," purportedly about “a head wrangler on a Japanese cattle drive,” into a samurai film with a suspicious title.
To prove this, the plaintiffs will call to the stand many executives who heard the Benays’ pitch in 2000. They will also be relying upon defendants’ internal drafts and outlines in the making of the film as well as correspondence with each other. Both Zwick and Herskovitz are scheduled to testify, and one can bet the two Hollywood veterans, who just got lifetime achievement awards from the WGA, will be grilled on both the timing and way their film project developed.
By 2000, when the Benay brothers' script was pitched, the plaintiffs aim to show that the film’s creative team was struggling. Zwick met with Dreamworks, for instance, who allegedly told him, "Yeah, yeah, yeah, all this Japanese stuff is great, but what about the white guy?" In response, Zwick directed screenwriter John Logan to “focus on the white guy now.”
Logan was dismissed by the judge as a defendant in this lawsuit, but will also be taking the stand. The plaintiffs ridicule the deposition Logan gave in this case, where he purportedly couldn’t recall any books or authors he had researched in writing the script, nor when exactly he figured out the protagonist. At trial, the Benay brothers will present documents that they hope will not only show these things were figured out after their pitch was made, but also that defendants later doctored evidence to hide their tracks.
Ultimately, the plaintiffs, represented by attorney John Marder, believe the facts will prove there was an “implied-in-fact contract” that meant that if the plaintiffs' ideas were used, compensation would be rendered. The way that Hollywood studios accept and decline script submissions will be as much on trial as anything later this month. Among the various executives testifying are Pamela Kirsh, Warners' former senior vp, and Scott Kroopf, Intermedia president and former Radar Pictures COO.
If the Benay brothers win, they might be handsomely rewarded. The film raked in more than $456 million in worldwide box office, and the brothers also want a jury to be mindful when dishing damages of “the positive impact a writer would enjoy had the plaintiffs been credited with a blockbuster film,” according to court documents.
But Zwick and Herskovitz don’t intend to let them get there.
The defendants, represented by Gary Gans at Quinn Emanuel, will attempt to show that that their film was created independently from the plaintiffs’ script, that they never received a copy of the script, and therefore never used any of the ideas. They say there was no contract because the Benay brothers can’t demonstrate privity.
Zwick (Glory, Legends of the Fall, Blood Diamond) and Herskovitz (Shakespeare in Love, Traffic) will testify that the basic elements of the film were developed in late 1999 and early 2000, even before the Benays’ script was allegedly told to them. The court documents suggest that Zwick will tell the jury that he’s been fascinated with Japanese culture back to his undergraduate days at Harvard and had a particular love of the great director Akira Kurosawa. He will say that he read a book after graduating about tragic heroes in Japanese history and wrote his own screenplay about an embittered American military veteran assimilated into Eastern culture.
The director says he was approached by Radar Pictures to helm West of the Rising Sun, but decided to pass. But Zwick says he kept an interest in doing a film that would combine Kurosawa’s Samurai films with John Ford’s westerns, and when it came time to work with Logan, he described to his colleague all the essential elements that would eventually become the box-office smash.
Besides hearing some 90 hours of arguments and testimony from the parties, entertainment executives, and experts, the jury will get a chance to screen the 2003 film.
And, although the Benay brothers never got a chance to have their names on The Last Samurai when it was in theaters, the trial will also feature a live reading of their script so that jury can compare.
Cruise likely won’t take part, but the dramatic reading may represent one form of relief for a pair of writers who have spent years in the court system getting this case to trial. Meanwhile, for all the other writers out there, struggling to figure out the intricacies of the Hollywood script submission process, this coming trial will probably offer some of the best education out there.