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Imagine this scenario: On February 22, 2015, Michael Keaton accepts an Oscar for best acting performance for his work in Birdman. (He’s commanding such buzz that on Wednesday, The New York Times mentioned the word “front-runner.”) Then, just a week later on March 2, Keaton appears at a federal trial over the issue of whether he ruined a movie.
The possibility is very real. And Keaton’s lawyers are working hard to ensure it doesn’t come to fruition.
The film that he allegedly ruined was The Merry Gentleman, his 2008 directorial debut about a young woman who escapes her abusive husband and then enters a complicated relationship with a suicidal hit man. In April 2013, Keaton was sued by the production company for allegedly not living up to his contractual obligations on the film.
According to the complaint, Keaton was difficult during the editing process, going fly fishing when he should have been working on the film and then delivering an unsatisfactory cut. As he worked on a re-edit, the producer had the screenwriter cut an alternative version, which the producer liked better. Then, the 2008 Sundance Film Festival came, and Keaton allegedly told the festival’s director that he would only attend if his version was screened. The producers said they felt no choice but relent. Then came more fights over choice of music and Keaton’s appearance on ABC’s Good Morning America, where he reportedly couldn’t confirm a description of the plot.
This all added up to the commercial failure of a film that cost the producers $5.5 million to make, according to the plaintiffs.
Read more ‘Birdman’: Venice Review
Since the lawsuit was filed, there’s been a tremendous amount of legal fireworks, including a judge’s decision not to enforce a settlement agreement around the time of Sundance festival because the producers may have been under duress; Keaton’s counterclaims against Paul Duggan for interfering with his contractually-promised final cut by getting involved in the editing of Merry Gentleman; and then an unsuccessful argument by Keaton that the lawsuit should be dismissed because Tom Bastounes, one of the minority owners of the production company (also an actor in the film), hadn’t consented to the filing of the lawsuit.
But wait — it gets even more hot.
Last month, Keaton filed a motion for summary judgment that begins with William Goldman‘s famous quote about making movies, “Nobody knows anything.”
His attorneys at Bartlit Beck and Kinsella Weitzman gave two reasons why the lawsuit should fail.
“First, the Directing Agreement does not make Keaton the guarantor of the Film’s commercial success,” states a memorandum. “There is no evidence that anything Keaton did or did not do as director caused the Film not to sell or underperform at the box office. To the contrary, all of the evidence shows that Keaton complied with the Directing Agreement, but that intervening causes resulted in the Film’s disappointing financial performance.”
According to Keaton, the film was a “critical and artistic success,” that other editors involved in post-production had rated his performance “an A… incredible… right at the top,” and that Duggan — a hedge fund guy with no movie-making experience — had bungled things by failing to do things like completing foreign pre-sales before completion of principal photography.
“Second, Plaintiff’s damages claims fail under Illinois law because Plaintiff is unable to prove those damages with reasonable certainty,” continues the memorandum. “Because there is no evidence to establish either causation or damages in connection with
Plaintiff’s contract claim, summary judgment in favor of Defendants is appropriate.”
According to Keaton, most independent films lose money and so attempting to sell it at Sundance was inherently risky. At that same 2008 festival, films starring Robert DeNiro, Tom Hanks, John Malkovich and Amy Adams failed to sell. “The fact that the Film did not sell can be attributed to a combination of factors, most notably adverse market conditions and the overall commercial viability of the dark script,” says Keaton’s brief.
The plaintiffs’ response, authored by attorney Matthew Tanner, came on Tuesday, is worth reading too.
The producers admit being “neophytes,” that Keaton wasn’t 100% terrible, that the movie was good, that “it is all but impossible to predict what will make a movie a commercial success,” and that they can’t prove Merry Gentleman would have sold for a reasonably ascertainable price if Keaton hadn’t breached his contract. And yet, they still say the summary judgment should be denied because Keaton didn’t perform under the contract.
“The sole basis for Keaton’s motion—really and truly, the only argument that his motion puts forth—is that plaintiff cannot hope to prevail on the second (‘alternative’) theory of benefit-of-bargain damages,” the producers say. “This is because, as Keaton is fond of noting, ”Nobody knows anything’ about achieving success in the motion picture industry.”
The producers then add, “But even if Keaton is correct in this argument, it is no basis for summary judgment… when the motion provides no basis for concluding that plaintiff cannot prove reliance damages.”
Reliance damages means that the producers would be compensated as if the contract with Keaton had never been formed. So the producer would get back their investment back. Or so they think.
Illinois allows this type of damages, and the producers argue that “even accepting Keaton’s position on the inherent inability of a litigant to demonstrate with reasonable certainty that preparing the film in a different way or in a different time-frame would have led to a measurably different result,” they can satisfy the need to show causation by merely showing that expenditures were incurred in preparation for Keaton’s performance.
It’s now up to the judge to figure out whether to end the lawsuit now or put it on track for trial, which has already been scheduled for the week after the Oscars.
As for what Keaton thinks about his Oscar chances, he is playing it cool, telling the NYT, “I think there’s chickens, and there’s hatched chickens.”
Maybe the same goes for lawsuits.
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