Appeals Court Won't Kill Lawsuit Claiming Universal Stole 'The Purge'

The 9th Circuit rules that Douglas Jordan-Benel isn't challenging the activity of filmmaking, he merely wants to be paid.

On Tuesday, the 9th U.S. Circuit Court of Appeals weighed in on the annual 12-hour period where all crime is legal. Well, sort of. What a three judge panel at the appellate circuit has decided is that Universal City Studios must continue to face claims of stealing Douglas Jordan-Benel's ideas for the box-office horror smash The Purge.

Jordan-Benel alleges that the film starring Ethan Hawke derives from his screenplay called Settler's Day. Among his claims is that when Jordan-Benel passed along his script in the entertainment industry, it was with the understanding that if it were used, he'd be compensated.

The defendants including Blumhouse Productions and Purge writer-director James DeMonaco attempted to stop the lawsuit with the argument that Jordan-Benel was attempting to interfere with their First Amendment rights, and that under California's SLAPP statute, he was unlikely to prevail in showing access and contractual privity.

Jordan-Benel prevailed at the district court, and now, he's gotten a second win at the 9th Circuit by getting the judges there to agree that his breach of contract claim does not arise from an act in furtherance of the right of free speech. This marks a very rare appellate loss by a major studio on an idea theft claim.

According to the opinion (read here), "We agree with the district court that the conduct or act underlying Jordan-Benel’s breach of implied-in-fact contract claim is Defendants’ failure to pay for the use of the screenplay idea. This conclusion is compelled by the fact that the failure to pay was the specific act of wrongdoing alleged by Jordan-Benel to give rise to a legal claim. Defendants are correct that the creation of The Purge films was not collateral to the principal purpose of the transaction between Jordan-Benel and Defendants. But Jordan-Benel’s claim does not challenge the activity of filmmaking at all. In fact, he desperately wanted the film to be made. Because the 'overall thrust of the complaint' challenges Defendants’ failure to pay for the use of his idea, we hold that the failure to pay is the conduct from which the claim arises."

Universal and the other defendants argued that the contractual claim over an alleged failure to pay for an idea — a plaintiff tactic that's become more common in recent years thanks to the difficulty of proving copyright infringement — wasn't particularly important. They posited that "but for" the production and release of the film, Jordan-Benel would have no lawsuit.

Writing for the panel, 9th Circuit Judge Harry Pregerson rejects this analysis, stating the specific wrongful act that gives rise to claims is what's most important. And that's not the filmmaking. He continues by squaring his conclusion with the SLAPP law, which was designed to curtail frivolous attacks on First Amendment activity.

"Because the target of Jordan-Benel’s claim is not actually the expressive works (The Purge films), applying a 'but for' analysis in this case would threaten to subject plaintiffs to the burden and expense of litigating anti-SLAPP motions in cases where protected free speech activity is not the focus of the claim," writes Pregerson. "By way of example, the district court considered a hypothetical newspaper company that agreed to pay a columnist a fee for each article published by the newspaper. If the newspaper company went on to publish one of the columnist’s articles without paying her, and the columnist brought suit seeking payment of her fee, the newspaper company could subject the columnist to an anti-SLAPP motion, relying on Defendants’ theory to argue that anti-SLAPP applies because 'but for' the newspaper’s publication of the article, the columnist would have no claim. Similarly, if a recording artist’s pay was tied to the number of records sold, and the artist sued the record label for breach of contract for non-payment, the record label could argue that 'but for' the creation and distribution of the record, the artist would have no claim."

Unless Universal attempts to get a third opinion from a wider panel at the 9th Circuit, Jordan-Benel’s lawsuit will now proceed at a lower court where the parties will engage in discovery and move on to a summary judgment round before potentially going to trial. That's right. The Purge could result in one.

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