9:46am PT by Ashley Cullins
Appeals Court Reviews Lawsuit Claiming 'The Purge' Was Stolen
Allegations of idea theft are hardly a new problem in Hollywood. Most lawsuits fail, but studios still spend hundreds of thousands of dollars — perhaps millions — each year on settlements and litigation costs. Recently, in an effort to deter litigation, studios have set their sights on recovering attorney fees from plaintiffs at the end of unsuccessful court actions. But is there anything studios can do on the front end of a lawsuit asserting idea theft?
That's where The Purge comes into play. Douglas Jordan-Benel claims that the ideas in his screenplay Settler's Day, about a family's fight to survive a state-sanctioned day on which crimes go unpunished, were stolen by The Purge writer James DeMonaco with the help of several UTA agents. In June 2015, Jordan-Benel experienced a surprising success at the pleading stage when U.S. District Judge Michael Fitzgerald rejected Universal's attempt to stop the lawsuit. On Monday, the case went to the 9th Circuit Court of Appeals and focused on one key line in Fitzgerald's opinion.
Jordan-Benel is not only claiming that The Purge is a copyright infringement of his script. He's also alleging that when the defendants accepted his screenplay for consideration, they entered into an implied agreement to pay him for ideas if they were later used.
In response, the defendants tried to strike the complaint under California's anti-SLAPP statute, which creates early barriers to frivolous lawsuits arising from free speech on matters of public interest. Here's why the defendants failed: Judge Fitzgerald ruled Jordan-Benel's claims didn't arise from protected First Amendment activity. It is the "alleged breach of the contract by failing to pay Plaintiff that is the act out of which the claim arises, not the creation and distribution of The Purge," the decision stated.
Because Universal, DeMonaco and other defendants failed here, the judge never got to the second part of the anti-SLAPP test necessitating plaintiff show a likelihood of prevailing on the claims before such claims move any further.
Reviewing the decision yesterday were 9th Circuit senior circuit judges Harry Pregerson and Dorothy W. Nelson, as well as circuit judge John B. Owens. They heard arguments from both plaintiff's attorney Glen Kulik and Universal attorney Kelli Sager.
Much of the time was spent discussing a recent California Supreme Court decision.
That case, Baral v. Schnitt, centers on how the SLAPP statute applies when the case involves a "mixed cause of action" — one involving some activity that is in furtherance of First Amendment-protected rights and some activity that is not.
"The anti-SLAPP procedures are designed to shield a defendant‘s constitutionally protected conduct from the undue burden of frivolous litigation," states the Baral opinion. "It follows, then, that courts may rule on plaintiffs‘ specific claims of protected activity, rather than reward artful pleading by ignoring such claims if they are mixed with assertions of unprotected activity."
That the 9th Circuit brought this decision to the attention of Kulik and Sager could portend their thinking — especially since Pregerson snapped at Kulik when he said the case wasn't "earth-shattering."
"You weren’t even aware of this critical case," said Pregerson. "You’ve got the nerve to come here and you’re making the same argument you made to the district court. There is an element of speech here. We have to construe this statute broadly."
Kulik had argued that there is only one cause of action giving rise to the claim: the non-payment. "The writer wants the defendant to use the idea," said Kulik. "Because if the defendant uses the idea, it triggers a promise to pay. It’s the breach of that promise to pay which is the only wrongful or injury-inducing conduct."
"But for the creation of these films, there wouldn’t be a claim here," Sager rebutted. "If it arises from speech, even in part, it falls under the SLAPP statute."
This leaves the 9th Circuit with a veritable chicken or egg decision: Is someone wronged by idea theft when the concept is used or when the person who uses it fails to pay the creator? If the panel follows Baral, the unprotected action of breaking an implied contract could be wrapped into the context that it involves the making of a film. And if the 9th Circuit goes this course, that will give studios the opportunity to potentially put the early breaks on a wider zone of lawsuits involving idea theft claims. If Universal does reverse Fitzgerald's ruling, the case would then address whether Jordan-Benel showed a likelihood of prevailing on his claims. In other words, the judges will have an opportunity to weigh the merits of the claim that The Purge was stolen. Whether that happens sooner or whether that happens later, it's up to the 9th Circuit to decide.