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Two weeks ago, U.S. District Judge James Otero refused to dismiss an MGM lawsuit against Universal over the spy film project Section 6. Unfortunately, the ruling was filed under seal so it was hard to immediately explain why the judge had allowed a lawsuit over a film that’s said to be in early development. Thankfully, a copy of the ruling has now been produced — albeit heavily redacted — and it reveals some of the judge’s interesting reasoning.
The judge hasn’t declared Section 6 to be a ripoff of the James Bond franchise — that’s not the purpose of a ruling addressing a motion to dismiss. Such a determination would only be made on summary judgment or by a jury.
However, Universal has legitimate reason for concern as Judge Otero’s opinion seems to go slightly beyond the usual analysis over whether MGM has pled a cognizable claim that Section 6 is substantially similar to James Bond.
In particular, the judge brings up a past 1995 case involving a Honda commercial that was determined on a motion for preliminary injunction to be substantially similar to MGM’s Bond movies.
“In the current case, Section 6 bears more similarities than the Honda commercial,” writes the judge. “Plaintiffs have pointed out many similarities in character, theme, plot sequence and dialogue.”
If that was the end of it, Universal could take heart that the judge is required at this stage to accept the plaintiff’s allegations as true, which won’t be the situation as the lawsuit proceeds. But the judge also addresses screenwriter Aaron Berg‘s fair use and de minimis defenses, saying they “are not persuasive at this point in the litigation.”
For example, the judge writes, “Here, iconic phrases such as ‘Bond. James Bond’ are both recognizable and significant, so Defendants’ de minimis argument holds little merit.”
As to Universal’s argument that it would be a “patent waste of resources” to litigate a film that the studio says hasn’t been given a green light, Judge Otero tears it to shreds.
“Far from being theoretical or abstract, according to Plaintiffs’ allegations, Universal possesses the right to use the screenplay, and has hired various people for the development of the motion picture project,” writes the judge. “Those types of ‘transitory’ film-making product make the copyright issues ripe for review. Universal’s assertion that it does not intend to infringe Plaintiffs’ copyright is also irrelevant because good faith is not an excuse for copyright infringement.”
If Universal — which paid $2 million to Berg for the script — is at all worried about any of this (including decisions to allow contributory, vicarious and inducement claims to survive), it continues to put on a brave face in court.
In an answer to the lawsuit on Tuesday — one that was expected to come given the judge’s ruling — Universal says MGM’s lawsuit represents the “desperate attempt of a rival studio to misuse its copyrights in order to kill a competitor’s project before it even gets off the ground.”
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