Source: Financial Times Weekend Magazine, UK, July 2001

[ View in PDF: BasedOnAnOriginalIdea_FinancialTimes.pdf ]

…but screenwriters ripped off by Hollywood studios may no longer be such easy prey after a recent high-profile plagiarism battle

Each Dawn I Die. The title of this 1939 James Cagney prison drama aptly describes the feeling of many a present-day Hollywood screenwriter who opens his morning Variety and Hollywood Reporter trade papers ad reads that his pet project, his labour of love, is finally going into production – but with another writer getting the credit. As Dorothy Parker once quipped: “The only ‘ism’ Hollywood believes in is plagiarism.”

“Every writer has been ripped off at some time,” says attorney John Shaeffer, 37, one of the pillars of the Hollywood litigation bar. “My firm gets a call on just about every movie that comes out. A lot of these claims are serious.” The bad news for these writers is that serious claims cost serious money. Shaeffer estimates that the cost of pursuing a plagiarism case against a big studio all the way through a jury trial is at least $700,000 (495,000). Studios, with their solid legal offices and fat copyright insurance policies, are loath to settle, and $700,000 simply isn’t writer’s money.

“A writer has to find a lawyer willing to be his banker,” says Shaeffer’s law partner, Pierce O’Donnell, whose victor in his most celebrated David and Goliath, writer against studio case, Buchwald v. Paramount, turned out to be a pyrrhic one financially. The $900,000 judgement against the studio was for denying humorist Art Buchwald credit and profits for his two-page synopsis of a story about an African prince arriving in New York to find himself a bride. This was developed into the Eddie Murphy smash hit Coming to America (whose concept, Paramount claimed unsuccessfully, Murphy came up with independently). Alas, O’Donnell’s legal fees exceeded $3m. Furthermore, this wasn’t a copyright case but a contractual one; unlike most aggrieved writers, Buchwald had a deal with the studio. Despite his “moral triumph” in that case, O’Donnell has shied away from all but the biggest writer-driven cases. “I’ve got five kids and 68 years of tuition ahead of me,” he says apologetically.

Lest beleaguered scribes get the impression that there are no copy rights, on copy wrongs, hope has arisen from one of the least Hollywood spots in America: Detroit, Michigan. In March, a Detroit jury awarded $19m against 20th Century Fox for infringing the copyright on another writer’s script. Shaeffer says it is rare for a “little guy” to get a case to trial and win. This one involved the 1996 Arnold Schwarzenegger Christmas hit Jingle All The Way, which grossed $183m worldwide.

The “dawn” Brian Alan Webster “died” rose on February 2, 1996, when he received a call from a friend who’d read that morning’s Variety. The greeting was grim: “Looks like they stole your script.” Webster, 49, a divorced father of three, is a Detroit high school biology teacher who has been dreaming of Hollywood for more than 20 years, and labored in his spare time to write screenplays.

As his friend read him the details of the soon-to-go-into-production film, headlining Schwarzenegger and TV sea Sinbad and directed by Home Alone‘s Chris Columbus, Webster saw a blockbuster that should have been his. The screenwriter mentioned, Ed McQueen, was the one nobody on Jingle All The Way‘s A-list of star names. Brian Webster’s shot at Hollywood had been taken by someone else. “I was devastated,” he later told the court.

The idea behind Jingle All The Way was the high-concept stuff of Hollywood dreams. As the film’s poster would put it, “Two Dads. One Toy. No Prisoners.” The story was simple: The last-minute competition of two gathers – one white, one black – to acquire the over-demanded hot action toy of the holiday season, a testosterone-bursting, male Barbie called Turbo Man. It seemed like pure gravy for 20th Century Fox. It seemed like pure larceny to Brian Webster, who’d written a script in 1989 that had a nearly identical storyline. That script had ben submitted to Fox in 1994.

As described in the legal filings, Webster’s screenplay, original led entitled “Action Man”, chronicled “the quest of a Caucasian mother attempting to obtain a hard-to-get action figure toy as a Christmas gift for her son. In the course of this pursuit, she competes with an African-American woman, similarly seeking to give the action figure doll as a Christmas gift.” As Webster saw it, Fox simply switched the genders of the leads, rechristened Action Man “Turbo Man”, and was heading straight for the bank. Luckily for Webster, he had a determined producer, show as willing to try to block Fox’s path.

Brian Webster found Murray Hill Productions in the Detroit Yellow Pages. While Detroit was not exactly overrun with film producers, Hill had actually received a Hollywood credit, as the producer of the 1987 thriller The Rosary Murders. The movie wasn’t t big hit but just making it was a big accomplishment for Robert Laurel, Murray Hill’s president.

Bitten by the showbusiness bug, Laurel was ready to take another shot at the big screen. Webster submitted his script to Laurel under the new title So This is Christmas, in 1993. Laurel, who is also a composer and jazz pianist, was immediately attracted to the idea because he himself had written a song called “Could This Be Christmas”. The song, about the misguided values of the holiday season, was strongly echoed in Webster’s script. Laurel detected a meeting of minds, and fancied the idea of his composition being the title song of a feature film.

The two men made a deal. Webster changed his title, once again, to “Could This Be Christmas”, and Laurel, through Murray Hill, look an option on the property for $10,000, a princely sum in Detroit and a fairly lavish amount in Hollywood for a writer who had never sold or optioned a script before. The big money, hundreds of thousands of dollars depending on the film’s budget, would be paid to Webster if the film were ever made. By Murray Hill, that is.

And there was the rub. Even though Laurel had submitted “Could This Be Christmas” to Fox, as well as to numerous other studios and production companies from 1993 to 1995, no one was interesting in moving forward towards making it. The critic Pauline Kael once wrote: “Hollywood is the only town where can die of encouragement.” And so its as for Robert Laurel. Endless meetings, boundless enthusiasm, no action.

“The studios are totally paranoid about plagiarism charges,” says Stephen Nemeth, president of Rhino Films and producer of Fear and Loathing in Las Vegas. “That’s why it’s so hard for an unknown writer to even get his script read. Studios won’t take unsolicited submissions. It has to come from an established entity.” Nemeth speaks recently at film seminars around the country, where he is bombarded with material from writers without access. “What the studios cannot do is police all the hyper-aggressive Sammy Glick-types working for them.” Nemeth is referring to the anti-hero of Budd Schulberg’s classic 1941 Hollywood novel, What Makes Sammy Run. Glick is the mogul who would stab anyone in the back, including himself, to make a deal.

Although Laurel had a film credit and was able to visit the club that was Hollywood, he was far from being a member. When he hired a small Detroit copyright firm to assert the rights “the club” had denied him, he found an interesting chain of potential Sammy Glicks who may have done him and Brian Webster wrong.

As it turned out, even before Webster had optioned his script to Murray Hill, in 1991 he had given it to a neighbor with a strong Hollywood connection. This girl next door had a brother-in-law, Alex Gartner, who was one of the film industry’s hottest rising executives. Gartner didn’t respond to the script. He did, however, become vice-president at Fox. In 1993, Robert Laurel submitted Webster’s script to another Hollywood player, Tom Rothman, then at the Samuel Goldwyn Company. Rothman did not respond to the script but in 1994 he joined Alex Gartner in the Fox executive ranks. In that year, Laurel made a further connection at Fox, submitting Webster’s script to John Matoian, president of Fox Family Films. Matoian followed standard procedure and sent the script down to the story department for “coverage” – a several-page synopsis and analysis that generally spares the executive from reading the script himself.

While positive coverage doesn’t guarantee that a script will be bought, bad coverage usually means it will not. “Could This Be Christmas” received a “pass” from the Fox story department. And this is where the plot thickens.

The script reader who wrote the coverage of “Could This Be Christmas” in July 1994, Rudy Romero, was best friends with another Fox reader, Randy Kornfield. Romero and Kornfield worked side by side in the story office. Ed McQueen, who sold Jingle All The Way to Fox in November 1994 for $800,000, was the pen name used by Randy Kornfield. The much-coveted “recommend” rating for Jingle All The Way was written by Rudy Romero.

A third Fox reader and friend, Steve Bulka, who had risen to become an executive at Nickelodeon Films on the Fox lot, had introduced Kornfield to the up-and-coming Warren Zide, who would become big as producer of the mega-hit American Pie. Zide teamed up with International Creative Management literary agent, Amy Ferris, another emerging power, to  make the deal on Jingle All The Way with yet another rising star, English born Fox executive, Peter Rice.

The chain of connection on Jingle All The Way reads like a who’s who of Young Hollywood. Everyone involved in the process of selling the film quickly went on to major success in the film industry. “I don’t know who did what, but I do know that Hollywood rewards scalawags,” says Pierce O’Donnell.

“it’s really hard to get  an injunction to stop a film from coming out,” says John Shaeffer, who with his partner O’Donnell tried to block the release of Steven Spielberg’s Amistad in 1997, claiming it was literary piracy of their client Barbara Chase-Riboud’s 1989 novel Echo of Lions. That book was based on the real-life failed revolt on board a slave ship in 1839, the same story Amistad tells. Oddly enough, Echo of Lions had previously been optioned by Punch Productions, owned by Dustin Hoffman. The writer that Punch hired to adapt Echo of Lions was David Franzoni, the sole credited screenwriter of Amistad. Franzoni claimed he had never read the book he had been hired by Punch to adapt.

Shaeffer and O’Donnell ended up settling for an undisclosed sum. Their client, Chase-Riboud, who just days before was seeking an injunction and $10m in damages, issued this settlement statement: “I think Amistad is a splendid piece of work, and I applaud Mr Spielberg for having the courage to make it.”

“That sentence must have cost DreamWorks (the producer of Amistad) at least a million,” says a prominent Hollywood screenwriter, who insists on anonymity for fear of reprisal. “Speilberg was eager to settled before the Academy Awards,” is all that O’Donnell will reveal. Partner Shaeffer adds, “I think he [Speilberg] still blames up for the picture being a flop.”

Realising the difficulty of obtaining an injunction, Laurel sought the counsel of one of Detroit’s pre-eminent litigation experts, the family firm of Morganroth and Morganroth.

Mayer Morganroth, 70, and his son Jeffrey, 38, are no strangers to celebrity cases, having represented high-profile clients such as car maker John DeLorean and “Dr Death” Jack Kevorkian. “It was our first movie case, but we weren’t intimidated,” says Jeffrey Morganroth. “We just wanted to be sure we tried the case in Detroit.”

“An excellent idea,” says John Shaeffer. “If you want to win, go out of this town [Los Angeles] where movies are the business. Here, it’s harder to get a our that isn’t seduced by the big screen.” And so in 1997, the Morganroths took the lawsuit on an undisclosed contingency basis (where the lawyer gets a percentage of any award), and filed a copyright infringement suit in a federal court in Detroit, one the jurisdictional grounds that the plaintiff lived there, the script was written there, and Fox showed Jingle All The Way there.

Fox made no attempt to transfer the case to Southern California. Nor did it sue its former script raiders Randy Kornfield, who had gone on to sign with the William Morris Agency and was enjoying a booming new citing career, with two cable films to his credit and another large script sale to Disney. Instead, Fox made its case on the contention that Kornfield’s work was totally original.

Murray Hill didn’t name Kornfield in its suit. “You never go after the writer,” says John Shaeffer. “They don’t have any money. Only the studios.” After years of discovery and depositions, with the opposing counsels flying back and forth between Michigan and California, the trial began in January this year.

To make their case, the first thing the Morganroths had to provide was similarity. On this point, the trial became a battle of two experts, each being paid $300 an hour for their preparation, analysis, and testimony. Fox’s man was Mark Rose, an English literature professor from the University of California at Santa Barbara, who had testified for Fox in several other cases in which the studio had prevailed. He took the party line, according to Jeffrey Morganroth and dismissed the many alleged similarities between the Webster script and the Fox film as “generic”  – things that would be common to any story about Christmas and toys.

“Rose was a hired gun,” Jeffrey Morganroth says, “a literature professor who had no experience in  teaching or writing about film.  Our expert was  not a Hollywood insider. He wasn’t indebted to the studios, And, he was a true film expert.”

Morganroth’s man, Ira Konisberg, was the author of The Complete Film Dictionary and had recently retired as the head of film studies at the University of Michigan. He found 36 points of overlap between Webster’s script and the 17 drafts of what would become Jingle All The Way. “You can’t have 36 coincidences in an independently created work,” declares Robert Laurel.

The coincidence that may have stuck most deeply in Laurel’s craw was Jingle All The Way’s theme song, which referred to misguided holiday values. It was sung in the film by Lou Rawls. Laurel had wanted his Christmas song sung by black country crooner, Charlie Pride. “It hurt him deeply,” recalls Jeffrey Morganroth.

However, the unanimous verdict of the six-member jury on March 6 went a long way toward soothing Laurel’s pain. Of the $19m award, $15m was based on Murray Hill’s claim to a rightful share of Jingle All The Way’s $183m in global box office receipts. The remaining $4m was for the author and co-producer and represented the fees and profile they had missed out on.

Morganroth and Morganroth’s legal fees came to about $1m. “I’m sure Fox spent much, much more,” Jeffrey Morganroth says.

Fox is prepared to keep spending. After the verdict, the studio (which did not respond to an interview request) announced that it would appeal. According to Jeffrey Morganroth, the process could delay his client from seeing any money for another two years.

But Laurel and Webster should not be too discouraged. “It’s hard to overturn a jury verdict,” says Bert Fields, one of Hollywood’s top guns in copyright matters. Fields represented DreamWorks in the Amistad case and also represents Fox in sundry matters, “which prevents me from commenting on this one,” he says.

“That’s what makes these cases so tough. All the best lawyers are hired by the studios,” says John Shaeffer, who has recently taken on a lot of studio work himself.

Jeffrey Morganroth reports that Brian Webster has been getting a number of post-verdict phone calls from production companies asking to see other script he wrote. After all, he is in line to possess (or repossess, as it were) a big Hollywood credit.

“I don’t believe the studios do it purposefully,” says Alain Bernheim, Art Buchwald’s producing partner, who himself didn’t product a movie for seven years after joining in the sit against Paramount. Bernheim explains that when a big star or hot agent brings a property to the studio, the executives deal first and worry about copyrights later. The studios, he stresses, prefer dealing with they’ve worked with before. The club rules. And he adds, “I’m to sure this [the Webster decision] will change anything – $19m is really nothing if the picture makes $200m.”

Screenwriter Alab Holleb agrees: “There should have been $100m in punitive damages. That would be the only way to teach the studios a lesson.”

Plagiarism remains a hit issue in Hollywood. In the film business, most writers presume the studios extremely guilty until proven innocent. “It’s shameful conduct,” says Pierce O’Donnel, “because David can almost never beat Goliath.” He outlines how the deck is loaded against the writers: enormous litigation costs, the co-opting of top attorneys by the studios, the difficulty of proving access and similarity, and the risk of being shunned as a whistle-blower.

So what can a poor screenwriter do? “Document, document, document,” says Jeffrey Morganroth. A long, detailed paper trail may be the best cross a writer can wave at the plagiarist vampires of Hollwyood. Nonetheless, despite the singular victor of the “little guy” in Murray Hill Productions v 20th Century Fox, as long as studies retain their fiscal hegemony and unequal bargaining power, the problem of plagiarism will never subside. “It’s an awful system,” says Bernheim, “but if you want to make movies, what can you do?”