Oh, the Horror: Universal Wants Appeals Court to Take Up 'The Purge'

The Purge People in Masks at Door - H 2013
Universal Pictures

The Purge People in Masks at Door - H 2013

Lock the doors and hide the children because the producers and distributors of The Purge are taking their horror flick to the 9th Circuit Court of Appeals.

Universal Studios, Blumhouse Productions and Purge writer-director James DeMonaco are fighting claims they stole the idea of the one night of the year that killing is legal from Douglas Jordan-Benel. Late last month, the defendants lost a bid to dismiss the lawsuit. Now, these defendants are seeking an interlocutory appeal that could be a game-changer on the front of thievery in Hollywood.

Jordan-Benel authored a screenplay titled Settler's Day, shopped it around to agents, and filed a lawsuit after the The Purge starring Ethan Hawke was released.

He brought copyright claims, backing them up with the opinion of UCLA Film School professor who called The Purge and Settler's Day "so striking that it is a virtual impossibility that the former could have been created independently from the latter."

But maybe more importantly, he alleged that the film producers had breached an implied contract. Basically, the theory is that he submitted his ideas with the understanding of compensation if used. This type of claim has proven trickier for studios to defeat in early stages of a lawsuit than copyright claims. On the other hand, there is no evidence at this point that once a breach of implied contract claim gets to trial, plaintiffs are primed for success. See, for example, the outcome of the case involving The Last Samurai.

Nevertheless, idea theft claims are a hassle for Hollywood studios, and ones that survive motions to dismiss are a special nuisance because legal fees are expensive.

In reaction to Jordan-Benel's lawsuit, the defendants tried something a little innovative that could have taken care of this problem. They wanted to take advantage of California's anti-SLAPP statute.

The law is meant to deter frivolous lawsuits that target First Amendment rights by getting the judge to focus on the likelihood of a plaintiff ultimately prevailing in claims. If free speech is involved, and the judge doesn't think the lawsuit is solid, a California judge has the power of throwing it out. What's more, the judge has discretion to order the plaintiff to pay defendants' legal fees. So if the anti-SLAPP statute applies to idea theft claims, those who believe they are victim to Hollywood thievery will have to think hard before bringing a case as they could be stuck with a bill for hundreds of thousands of dollars should they lose.

But last month, U.S. District Judge Michael Fitzgerald rejected the SLAPP bid by defendants in the Jordan-Benel lawsuit.

"The Production Defendants argue that the act underlying Plaintiff’s claim for relief falls squarely within the anti-SLAPP statute – the making and distribution of a motion picture that covers issue of intense public interest," the judge wrote. "However, the Production Defendants’ motion fails at the first hurdle because they misconstrue the action upon which Plaintiff bases his claim: it is DeMonaco and WPN’s 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."

In other words, the judge decided that Jordan-Benel's claims didn't fit the anti-SLAPP framework because money — not speech —was at issue.

Universal, Overlord Productions, Platinum Dunes Productions, Why Not Productions and DeMonaco probably think compensation and the creation and distribution of the film are so intertwined, there's really no difference. While they haven't yet articulated the basis for their appeal of Fitzgerald's decision, a notice filed this week by attorney Kelli Sager indicates they are challenging the denial of their special motion to strike.

Thus, the stage is set to have a federal appeals court consider a movie about unfettered permissiveness. Depending on how one looks at the gambit, the production companies will aim to enforce some rule and order on those lawsuits raining down upon Hollywood. Viewed in a different lens, the production companies want a more free hand to use ideas without recrimination.