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Ed Zwick, Marshall Herskovitz and Bedford Falls are scheduled to stand trial next week for allegedly stealing the ideas for the 2003 Tom Cruise blockbuster The Last Samurai. The case will determine whether an implied contract was made when screenwriters Aaron and Matthew Benay purportedly submitted their own “The Last Samurai” script to the defendants during the film’s development. If a jury says there was a contract and that Zwick and Herskovitz must pay the writers for use of their story about an embittered American Civil War veteran who travels to Japan, the next question will be how much money is owed.
Asked by a judge to come up with an estimate of the damage for a stolen idea, the attorney for the Benay brothers answered somewhere between $7 million and $10 million.
The defendants believe this amount to be outrageous. Zwick and Herskovitz are fighting to keep any news that the film grossed some $456 million in worldwide box office away from the jury’s ears and are setting up a different damages figure — no more than $150,000, the amount the Benay brothers got when, after being rejected by the defendants, they sold their script to New Regency.
As the trial soon kicks off, the case might soon answer an eternal question in Hollywood: What’s the true value of a good idea?
The Benay brothers’ lawsuit took many years to get to trial, surviving dismissal after an appeal up to the 9th Circuit Court of Appeals.
Now almost set to go, the Benay brothers will present evidence of how their agent, David Phillips, orally pitched their WGA-registered screenplay to Bedford Falls executive Rick Solomon, and that within days of their submission, Zwick began running with the ideas.
The jury will have to figure out whether there was an implied-in-fact contract between the Benay brothers and Zwick/Herskovitz. In other words, when Phillips pitched Solomon, did he condition disclosure on payment if the ideas were later used? To figure this out, the parties will call various experts to the witness stand to talk about standard practices in the Hollywood submission process.
The Benay brothers’ plan to call Hollywood producer Peter Heller to testify that the methods used by Phillips weren’t out of the norm. Heller also plans to testify that screenplays are routinely accepted and reviewed by studios and production companies without entry into submission logs and that the “haphazard submission policies employed by Bedford Falls” show that “a screenplay received by Bedford Falls could easily bypass their submissions log.”
The defendants are objecting to this testimony because Heller purportedly lacks sufficient knowledge about Bedford Falls’ submission policies and doesn’t have experience with implied-in-fact contracts. The defendants have asked the judge to disqualify Heller as a witness because he’s purportedly making overly broad conclusions based on simplistic analysis.
Bedford Falls also doesn’t like the way the plaintiffs and their witnesses plan to address the question of damages.
If a jury determines that the defendants owe money to Aaron and Matthew Benay, the jury will have to figure out what the reasonable market value of the script was worth.
This isn’t an easy exercise to do in hindsight. The movie was a phenomenal success at the box office, and one might ask whether the hundreds of millions of dollars earned would have been made it to the coffers were it not for a script that the plaintiffs allege provided the movie’s key ideas.
But Zwick and Herskovitz believe that the box-office success is immaterial and that a judge should forbid any talk about it at trial. The two, who just received a lifetime achievement award from the WGA, point in court papers to factors that contributed to the film’s success beyond writing, including Cruise’s acting and Zwick’s directing. Essentially, they believe that to figure out damages, one must unwind the film’s resulting success with the market value of an idea at the time of the pitch. The value they highlight is $150,000 — the amount New Regency paid to option the Benay brothers’ script — and suggest this would be on the high side “because, in light of the 9th Circuit opinion, Defendants took, if anything, a small number of generic ideas from the Benay Script.”
The Benay brothers, of course, dispute this and present Zwick and screenwriter John Logan as basically clueless before they got their hands on plaintiffs’ script. They also think the jury should be mindful of “the positive impact a writer would enjoy had the plaintiffs been credited with a blockbuster film.”
Meanwhile, Warner Bros. continues to watch this case closely. The studio was dismissed as a defendant last month, but it wants to make sure that the summary judgment order is a final judgment. It is doing so with some notion that the plaintiffs might appeal the dismissal. As the trial kicks off, Warners says in a motion it is in “legal limbo” and having to monitor the progress of the case for the “the mere possibility that the Warner Defendants might be brought back.” The studio also tells the judge it “should not be forced nonetheless to guard their interests by continuing to participate in this litigation, having to make hard choices about their level of participation.”
UPDATE: Warner Bros. says it won’t be attending UPDATE2: Trial has been pushed back to March 27.
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