
My Gravity lawsuit and how it affects every writer who sells to Hollywood - bmmayer1
http://www.tessgerritsen.com/gravity-lawsuit-affects-every-writer-sells-hollywood/
======
dxhdr
What's wrong with these people? Why couldn't Warner Brothers reach out to Tess
and say "Hey, we're going to produce a sci-fi film based on GRAVITY. We'd like
to work with you and are interested in re-negotiating your contract for a new
version of the story." You know, acting in good faith.

Instead they just screw her, no recognition, no money? How is that the default
thought process for a company? This may be vindictive but I hope the court
sticks it to Warner Bros in the most painful way possible. Something needs to
be done to change the decision making process at that company.

~~~
ubernostrum
Well, some of the issues seem to be:

1\. The movie "Gravity" is primarily an action/special-effects pageant about
an astronaut trying to get safely back to Earth after an accident destroys the
space station she was on. The book "Gravity" is a medical techno-thriller
about a doctor in space fighting a disease outbreak on a space station.
Reasonable people can probably disagree about whether the movie, given its
significantly different plot, is even a derivative of the book at this point.

2\. The lawsuit was not regarding plagiarism, but rather for breach of
contract related to the film rights for the book. Gerritsen alleges that
Warner Brothers was bound by and failed to observe the terms of a contract she
had signed with a company which became a subsidiary of New Line, which in turn
became a subsidiary of Warner Brothers. The court found that even if all
allegations in her complaint were taken to be true, they still would not
establish that Warner Brothers was bound by that contract. This mostly seems
to depend on the arcana of contract law and how mergers and acquisitions pass
obligations on (or don't pass them on), and suggests that the main issue was
either she or her attorney did not sufficiently understand those arcana (given
that she apparently contracted for a percentage of net rather than gross, a
lack of experience in what makes a good contract for film rights seems likely)
in order to build a successful complaint.

~~~
radisb
> The court found that even if all allegations in her complaint were taken to
> be true, they still would not establish that Warner Brothers was bound by
> that contract.

So it is possible that: 1) X sells rights to Y, having Y commit to obligations
in exchange. 2) Z acquires Y. 3) Z now has the rights but not the obligations.

WTF?

~~~
Anderkent
I'd guess they either don't have the rights, or don't have the obligations. If
you're suing for breech of contract, you'd have to show they have the
obligations; if you're suing for infridgement, you have to show they don't
have the right.

------
lisa_henderson
Everyone should stop for a minute and imagine what would happen if this legal
precedent spread to the tech startup world. We might then have situations
where a highly experienced programmer might sign up with a startup, and sign a
contract with that startup, but then have the contract declared null and void
if the startup is acquired.

I can imagine a "less likely" and "more likely" way this might play out:

1.) "less likely" would be something bordering on blatant theft -- perhaps the
contract specifies options or bonuses, but the parent company, after the
acquisition, no longer wants to pay. That would be fairly blatant, though not
impossible.

2.) "more likely" would, I think, be issues regarding copyright, which, with
software, allows something of a fudge factor, since software is always
changing, and no one programmer writes the whole of a large system. I'm
thinking of my own startup here: during the years 2000 to 2002 I created a
content management system, which then became the basis of a company that was
formed in 2002. But the founding documents of that company gave me the right
to specific royalty payments for the CMS, even if we eventually agreed to
dissolve the company (which we did in 2008). But suppose the company was
acquired, and then the acquiring company declared that the requirement to pay
royalties was null and void? This is very similar to what apparently happened
with Gravity.

Worrisome.

~~~
comrade1
But that does happen, in way. The most well-known was Zynga - when they were
getting ready to go public they did a claw-back on their outstanding options
and shares. They screwed over a friend of mine that was one of the early
employees.

[http://www.wsj.com/articles/SB100014240529702046219045770183...](http://www.wsj.com/articles/SB10001424052970204621904577018373223480802)

~~~
thanksgiving
Marcus Pincus is a piece of shit by his own admission. We should make a six
degrees of separation where anyone who does any partnership or collaboration
with that piece of shit immediately deserves a boycott as well. Yes, HN this
includes even your god and lord Paul Graham...

Zynga CEO Mark Pincus: "I Did Every Horrible Thing In The Book Just To Get
Revenues" [http://techcrunch.com/2009/11/06/zynga-scamville-mark-
pinkus...](http://techcrunch.com/2009/11/06/zynga-scamville-mark-pinkus-
faceboo/)

~~~
sgift
Just because he admits to common practices instead of hiding behind the usual
bullshit doesn't make him any worse than other CEOs. And just to make it clear
which way to read that: That's not a defense of Pincus. That's a shot at the
other CEOs. Business and moral don't go together, you can read that on HN all
the time.

~~~
thanksgiving
oh god yes and the entire state of Texas which makes the agreements that
marcus pincus makes you sign when you join zynga sound lax.

there should be some federal minimum standard so that incompetent and
malicious state actors in one state don't try to undercut fundamental economic
policies of other states to lure away the companies from states like
California... You should not be able to say "Come and incorporate in Texas and
you'll own whatever your employees and ex-employees think for their entire
lives". Or come to Texas and you won't have to pay a minimum wage to your
employees.

[https://groups.google.com/forum/#!topic/comp.dcom.telecom/op...](https://groups.google.com/forum/#!topic/comp.dcom.telecom/opcJsH-
IPfs)

[http://repository.jmls.edu/cgi/viewcontent.cgi?article=1118&...](http://repository.jmls.edu/cgi/viewcontent.cgi?article=1118&context=jitpl)

------
tptacek
Here's the whole ruling:

[https://pmcdeadline2.files.wordpress.com/2015/01/wb-
gravity-...](https://pmcdeadline2.files.wordpress.com/2015/01/wb-gravity-
lawsuit-order-wm.pdf)

It's more complicated (of course) than Gerritsen makes it out to be. The
Hollywood Reporter does a decent job of explaining the contours:

[http://www.hollywoodreporter.com/thr-esq/warner-bros-
knocks-...](http://www.hollywoodreporter.com/thr-esq/warner-bros-knocks-down-
best-768627)

(and, in fairness, it's more complicated than WB makes it out to be as well).

Most of the ruling concerns itself with the admissibility of various documents
for the purposes of a dismissal ruling, which is complicated by the fact that
the court has to stipulate all of the plaintiffs facts as true and still find
no cause for a lawsuit in order to grant the motion.

From what I can tell, the meat of the ruling is:

* Gerritsen didn't have a contract with WB, but with Katja and, presumably, New Line.

* Gerritsen's argument depends in part on the notion that Katja/New Line would, absent control by WB, have fought against WB making a picture based on work they'd already licensed. Katja/New Line didn't do that.

* Gerritsen might have a legitimate grievance, but it's with Katja/New Line and its previous owners, who were paid by WB. Gerritsen is thus in effect a creditor of Katja's, and if she's owed something, it's owed from the proceeds of the sale, not from WB's own bank account. Or something like that?

It's headachey stuff.

~~~
spiritplumber
No, if you buy a company, you buy it lock stock and barrel - that includes
outstanding debts, existing deals, and obligations.

Otherwise it'd be trivial to make a company go millions in debt, then sell it
to an accomplice who would keep the assets and poof the debts.

This still happens, of course, but there are fraud laws against it, and
successful attempts when they happen generally require wriggling through a lot
of loopholes.

~~~
madsravn
Let's turn it around. If they (WB) feel like they didn't buy it all, they
shouldn't have the intellectual property to make a movie based on the book.
Seeing it this way, they never bought anything.

~~~
voyou
The author clarifies in another post on her blog[1] that she isn't claiming
that the film is sufficiently similar to the book that it would infringe on
her intellectual property. Rather, she is arguing that she has a contract
which guarantees her certain compensation if the studio make a film "based on"
her book, and that "based on" doesn't require that the film be so similar to
the book that it would infringe her copyright. She references an earlier court
case (about the film "Coming to America") which distinguishes what would count
as copyright infringement from what would count as a film being "based on" a
story, when the words "based on" are used in a contract[2]. This does seem
like a slightly headache-inducing legal subtlety.

[1]: [http://www.tessgerritsen.com/difference-breach-contract-
copy...](http://www.tessgerritsen.com/difference-breach-contract-copyright-
infringement/)

[2]:
[http://web.archive.org/web/20111108152730/http://www.degenev...](http://web.archive.org/web/20111108152730/http://www.degenevieve.com/files/Buchwald%20v%20Paramount.pdf)

~~~
WillNotDownvote
Writing and story credits are determined by the producers (based on union
guidelines), and arbitrated by the Writers Guild if there's a dispute. That
arbitration process is a nightmare from all accounts, but it's what everyone
agrees to use.

What I don't know is if "based on" is outside those terms. From looking of the
WGA website, it looks like it might well be.

Where I think she'd be out of luck for sure is that the changes she made to
the script (which are the places of greatest similarity to her book) would
have been work for hire for the studio, and they'd own those changes outright.
Which makes sense if, for example, the studio requested those changes from
their side. Even if they didn't explicitly give her notes to make those
changes, she did so while she was hired by them, and was compensated for
making them.

I'd be interested in hearing from a highly experienced screenwriter or
screenwriter's agent. There are indeed a lot of subtleties at work that aren't
readily apparent. I think there's a good chance the studio is in the right
here.

------
chrisbennet
Even if they honor the contract she will get nothing besides being credited.
Her contract states that she gets a percentage of the profits - and the movie
will probably never make a profit.

Return of the Jedi never made a profit "despite having earned $475 million at
the box-office against a budget of $32.5 million" (Wikipedia "Hollywood
Accounting")

Very sad.

~~~
arobertson
If it is well known that the studios use various accounting methods to hide
profits, why do the people in the industry still accept contracts based on
profits?

~~~
objclxt
Nobody takes net points. Plenty of people take points on the gross, which is
fine. Studios know that talent has wised up to net points, but that doesn't
stop creative accounting from screwing you over in other ways.

For example, one of Peter Jackson's main grievances when he sued New Line was
that he had been promised a cut of the revenue from merchandising right sales.
New Line sold the merchandising rights to its own sibling and subsidiary
companies using a closed bidding process at well below market rates.

~~~
petegrif
Plenty of people don't take points on the gross. Very few people get such
points on gross.

------
AustinG08
If only a powerful group like the MPAA would be opposed to such blatant
exploitation of a person's creative work...

 _edit: grammar_

------
rosser
Hollywood is much easier to understand if you look at it as a collection of
interrelated financial instruments, that also occasionally makes movies.

~~~
fabulist
This seems like an interesting perspective, would you care to elaborate?

~~~
logfromblammo
You could watch Mel Brooks in _The Producers_.

The short version is that the system has become so complex that the outputs
are becoming less correlated to the inputs. The money coming out is losing its
relationship to the motion pictures going in.

------
burnte
This is alarming, but not surprising, especially in Hollywood. However, once
they amend the complaint, I have a feeling WB will have a hard time arguing
that both the contract gives them the rights to the story, and that the
contract isn't enforceable or binding. This will be interesting.

~~~
spiritplumber
I had a similar problem a good while ago, on a much smaller scale, when a
company that was buying land to put solar panels on it went bankrupt -
essentially, they bought the panels, installed them on land that was actually
belonging to another company that belonged to the crook's wife, and then
declared bankruptcy after setting up some deal with the wife's company whereby
it would get first rights to the assets (the panels) which were liquidated for
pennies on the dollar. End result, they got free solar panels for their land.

I did an electrical design for them, and ended up not getting paid because the
debt was with the defunct company, not the wife's company.

When I asked for my father's advice, he told me that legal channels are
powerless in these cases, and offered to loan me a construction crew to go to
the land at night and either steal or destroy as many panels as I felt was
fair.

Frankly I'm surprised it doesn't happen more often, although I am guessing
that it's more of a Mediterranean thing than an Anglosaxon thing. The general
consensus among Italians and Greeks to whom I told the story is that this was
a fair manner to solve the issue, the general consensus among Americans and
Canadians to whom I told the story is that my father proposed a criminal
action (This whole thing happened in Italy).

Virtue probably lies in the middle, but I wouldn't know what the middle ground
for this sort of thing is...

~~~
sukilot
In your story, fair and criminal are not exclusive. So the cultural bias was
more about if you could expect to be punished by law.

~~~
spiritplumber
Good point. That's the problem - what's honest and what's legal should...
well, at least have some correlation!

------
lifeisstillgood
Her contract stipulated she gets "based upon" and a percentage of net profits.

Now I know nothing about Hollywood but I do know that if you have a percentage
of the net then everyone you meet sees a great big L on your forehead. Almost
no movie makes a net profit.

You get a percentage of the gross or you are not taken seriously.

~~~
jonnathanson
_" You get a percentage of the gross or you are not taken seriously."_

Correct, but you also have to be taken seriously to _get_ a percentage of the
gross. Not everybody who asks for gross points gets them. Generally speaking,
you need to be on the A list, or have a killer agent, or have a property that
incites a bidding war between studios.

------
thinkcomp
Here's the docket and selected documents (blame PACER):

[http://www.plainsite.org/dockets/28d2o3t22/california-
centra...](http://www.plainsite.org/dockets/28d2o3t22/california-central-
district-court/terry-t-gerritsen-v-warner-bros-entertainment-inc-et-al/)

------
rsync
"I will receive “based upon” credit, a production bonus, and a percentage of
net profits."

Wait ... I don't know anything about _anything_ and even I know you don't ever
stipulate profits in a film rights contract ... right ?

~~~
SG-
That's why there's also a "production bonus", but more importantly credit.

------
fubarred
Large shops have huge bull's-eyes painted on them. If they act in bad faith,
they will eventually lose reputation and business, spectacularly. This is why
top VC's aren't going to do things that tiny VC's might try to get away with.

Also it's worth nothing that going out-of-your way to be fair isn't just
"being nice," it selfishly reduces risk of issues, especially in small,
highly-connected industries where reputation is the first consideration.

So if we are to take her account at face value, it seems like WB misjudged
that word would get around and then lawsuits. (An expensive lesson in hubris.)

~~~
orkoden
Until this eventual case of loss of reputation and business happens, they're
laughing all the way to the bank. If it even comes. Lots of horrible and
criminal corporations continue to exist and are successful.

Your just world theory conform to reality.

------
Zangela
To me, that's extractly a move to aviod paying what Tess should have from
Warner Brothers. Warner Brothers just took an unspeakable way to gain money,
but this could ruin its reputation. Tess should fight for her own right, and
stand up for others with similar situations who don't have the backbone to
fight.

------
FrankenPC
It seems to me a safer way to sell intellectual property rights would be to
place a legal caveat that if the purchasing company is dissolved/acquired for
any reason, the contract is null and void and the rights revert back to the
original owner.

------
sethd
Sadly, I imagine Tess will be blacklisted from doing future business with the
entertainment industry. Hollywood has a history of doing exactly that to those
to sue over issues like this.

------
amelius
Small question. How does one become a Hollywood writer?

~~~
dmckeon
" _Hemingway famously said that the best way for a writer to deal with the
movie business was to arrange a quick meeting at the California state line:_
'You throw them your book, they throw you the money. Then you jump into your
car and drive like hell back the way you came.' (quoted in: Hemingway Lives!
by Clancy Sigal)

------
blueskin_
Good luck to that guy. A lot of lawsuits over movie plots seem to be frivolous
and I've supported the film company more than once, but that one seems to be
the exception to the rule.

------
Mandatum
I don't believe this is HN-relevant.

~~~
LukeB_UK
Derivative works and licensing are a huge part of the software development
industry and open source.

Edit: Updated for civility.

~~~
logicallee
I upvoted you. Actually your parent should remain ungreyed as extremely civil
and couched in terms of a personal opinion, which elicited a thoughtful
response from you. If you delete your first sentence and downvote complaint we
get:

    
    
      Mandatum 31 minutes ago | link
    
      I don't believe this is HN-relevant.
      reply
    
         LukeB_UK 28 minutes ago | link
    
         Derivative works and licensing are a huge part of the software development industry and open source.
         reply
    

Which is great insight to the thread.

~~~
LukeB_UK
Thanks for the input, I've updated my post for civility.

