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A federal judge has dismissed Warner Bros. as a defendant in a long-running case that alleges that the script for the 2003 Tom Cruise film The Last Samurai was stolen from writers Aaron and Matthew Benay. In his ruling, Judge Philip Gutierrez has determined that the plaintiffs have not established sufficient “privity” to show that the studio shared knowledge of the writers’ screenplay.
But Bedford Falls, a production company of producers Ed Zwick and Marshall Herskowtiz, remain in the case and must defend allegations of breach of an implied contract.
“We are gratified the District Court has completely vindicated us from this spurious claim,” Warner Bros. said in a statement.
The 17-page ruling, a copy of which was obtained by The Hollywood Reporter, was issued Wednesday after a heated hearing in Los Angeles on Monday.
The studio had argued that the case, which has featured odd allegations of “forged” documents, should be dismissed on two major grounds.
First: the mysterious “forged” documents had come into play after the case was revived and remanded by the 9th Circuit Court of Appeals. Warners offered evidence that the documents were a hoax perpetrated by the plaintiffs themselves. The documents were allegedly used to plug the holes in the plaintiff’s “privity” theories.
Judge Philip S. Gutierrez says that while the documents were suspicious and the defendants had made a good case proving their falsity, he ruled that the “defendants have made an insufficient showing of the culpability on the part of the Plaintiffs or their counsel to warrant [terminating] sanctions.”
The judge is deferring a ruling on whether the documents are admissable. He did not address allegations made in a recent media report that Warner Bros. lawyers had engaged in evidentiary shennanigans invovling DNA evidence. That issue seems unlikely to play a big role in the case.
Regardless, the judge is convinced that the Benay brothers haven’t established that Warner Bros. was privy to their script. The plaintiffs had argued that the studio was made aware of the script in 2003 upon objection by an attorney for the brothers. The plaintiffs also believed that privity—a term denoting whether someone has a sufficient relationship to justify a lawsuit—could be established because an employee of Silver Productions, a company located on the Warner Bros. lot, had seen and passed around the script.
Neither of these allegations were made in the plaintiffs’ amended complaint, however, and the judge doesn’t find convincing evidence the script was actually delivered. As such, the studio has been released from any liability for breaching an implied contract that if the plaintiffs’ ideas were used, compensation would be rendered. Screenwriter John Logan also has been dismissed as a defendant.
“We are gratified the District Court has completely vindicated us from this spurious claim,” said the studio in a statement after the ruling.
Other defendants in this case haven’t gotten off so easily.
The Benay brothers’ script for Last Samurai—about an American war veteran going to Japan to help the Imperial Army by training it in the methods of modern Western warfare for its fight against a samurai uprising—was written in the late 1990s. The brothers registered it with the WGA. They hired a literary agent, David Phillips, who “pitched” it to Richard Solomon, the president of productions at Bedford Falls, a production company of Zwick and Herskowtiz. Solmon told the agent that he decided to “pass” on the script.
Zwick and Herskovitz, whom the judge declined to dismiss from the case, unsuccessfully argued that statute of limitations foreclosed the lawsuit. And the two also tried to dismiss the case on privity grounds.
According to the decision, “The Court finds that triable issues of fact prevent a determination that Solomon was not actually or apparently authorized to accept submissions for Zwick and Herskovitz’s as individuals.” Judge Gutierrez adds that a trier of fact could conclude that Solomon was authorized in this capacity to accept scripts for Zwick and Herskovitz.
So the case continues against the duo, who will be receiving lifetime achievement honors at the WGA Awards this weekend. Last Samurai represents one of their biggest hits, with more than $456 million in worldwide box office receipts.
Meanwhile, the Benay brothers have also moved onto big things. The two have written the script for 1906, a San Francisco earthquake film to be directed by Brad Bird. At the hearing on Monday, there was some indication by the judge that the Benays might be able to gain credit on Last Samurai if their allegation of a breached implied contract was eventually found by a jury in their favor.
“As this finally goes to trial, I believe it will be one of the biggest idea theft cases in history, if not the biggest,” says Aaron Benay in reaction to the judge’s ruling.
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