11:50am PT by Eriq Gardner
'Good Kill' Producer Handed Appeals Court Defeat Over Movie Credit Snub
A California appeals court has shot down a lawsuit filed by film producer Mark Amin over shoddy treatment in the credit sequence for Good Kill, a film about drone warfare starring Ethan Hawke and January Jones.
Amin, an executive producer on Frida and other Oscar- and Emmy-nominated works, sued Voltage Pictures in May 2015 with the allegation that he was promised "gold standard" treatment and instead his name was buried as a producer of Good Kill "in a greatly inferior position at the bottom of a card headed by two of the defendants' executives."
In September 2015, a Los Angeles Superior Court judge advanced Amin's contract and fraud lawsuit over Voltage's First Amendment objection that Amin was attempting to interfere with its exercise of free speech in connection with an issue of public interest.
On Tuesday, California Court of Appeals Justice Elizabeth Grimes reversed the ruling. As a result, Amin's Sobini Films loses the lawsuit and will have to pay attorney fees and costs.
Amin's company put up $1.3 million for Good Kill, and he says he was guaranteed a single card "produced by" credit in the main titles. According to the lawsuit, "To get defendants' promise of that special treatment for Amin, Sobini agreed to accept a lower share of the film's profits than it would otherwise be entitled to."
Voltage brought an anti-SLAPP motion, which meant that the trial judge had to first examine whether free speech was involved and whether the lawsuit really targeted a matter of public interest. In other words, are mistaken credits a protected activity that everyone cares about?
Grimes writes that "public interest" is to be construed broadly, and nodding to a 2007 decision concerning a producer who squared off against IMDb over a snub on My Big Fat Greek Wedding, decides that credits fall within the ambit of a law that aims to deter any impingement of First Amendment activity.
"Plaintiffs contend that, because defendants admit their conduct in creating the credit sequence without a single-card credit for Mr. Amin was a mistake, rather than (as plaintiffs contend) intentional conduct, it was not protected First Amendment activity," writes Grimes. "There is nothing illogical in the conclusion that both correct and mistaken speech involve First Amendment activity. It is the act of producing and distributing the film — including its opening credits — that is protected activity, and that necessarily includes mistakes made in the course of doing so."
She also writes that the listing of credits while perhaps not itself a part of the "creative process underlying the production," nonetheless furthers production and distribution of a film and is a reflection of the creative process.
"Credit for the production is surely a matter of public interest throughout the film industry, if not to the viewing public at large," she adds. "As defendants point out, this very lawsuit immediately generated press coverage in The Hollywood Reporter." (Our pen doesn't always convince judges of public interest.)
Having come to the conclusion, Grimes next analyzes the probability that Amin will succeed on the merits of his lawsuit. Under California's anti-SLAPP law, if judges get to this stage and decide a lawsuit likely won't be successful, the litigation ends.
"Ordinarily, a mistake in the credits, intentional or negligent, would constitute a breach of contract, because the credit agreement was a material term," writes Grimes. "Here, however, the parties agreed that a 'casual or inadvertent failure' to comply with the credit requirements would not constitute a breach of contract."
The appellate justice also notes that Amin failed to notice the mistake in the credit sequence for the Andrew Niccol-directed film when he viewed early cuts at Creative Artists Agency and at various film festivals. While Amin contended that the failure to give him appropriate credit was deliberate, Wednesday's decision rejects such an inference based on the evidence at hand. Moreover, Grimes points out there was "no evidence of any expectation in the film industry that an already-distributed film should be recalled to correct credits."
Further, the California appeals court says there is a lack of evidence that Amin suffered damages.
Amin put forward a declaration from another acclaimed movie producer, Michael Medavoy (Black Swan, Shutter Island), who said that "the level of prestige this single card credit affords amounts to both increased possible monetary gain and countless future opportunities” and “[t]he compensation loss from being denied this single card credit could be immeasurable.”
The defendants countered with Jeffrey Offsay, a former top executive at RKO Pictures, ABC and Showtime, who nodded to the disappointing returns for Good Kill. (The film grossed $316,472 and cost $8 million to make.) Offsay opined that since the film did not perform well, it wouldn't have helped his reputation.
"Thus, three titans of the film industry — Mr. Amin, Mr. Medavoy, and Mr. Offsay — all agree that producer credits are important, and can have great value in terms of prestige and opportunity," sums up Grimes. "But the dispute over the relative importance to Mr. Amin of the credits in this particular film is immaterial, because neither Mr. Medavoy nor Mr. Amin nor any other witness offered any reasonably certain, specific, and unspeculative evidence of damages, and Mr. Offsay provided an ample factual basis from which to infer no damage was done."