Suing Hollywood: why writers always lose

A screenwriter friend of mine, currently involved in a copyright infringement lawsuit against a studio, recently sent me this article written by Steven T. Lowe, a Los Angeles entertainment attorney.   It’s a pretty depressing piece.  Mr. Lowe explains why writers who’ve had their stories stolen by movie studios face impossible odds finding justice in the courts.  Instead of allowing these cases to reach a jury, more and more judges are single-handedly deciding the matter of similarity between stories, and are not even considering the testimony of plaintiffs’ experts.

One of the more astonishing cases Mr. Lowe cites involved the motion picture The Last Samurai.  In the late 1990s, established screenwriters Matthew and Aaron Benay, through their literary agent, submitted a screenplay called The Last Samurai to a production company called Bedford Falls.  Their screenplay was “about an American war veteran going to Japan to help the Imperial Army by training it in the methods of modern Western warfare for its fight against a samurai uprising.”  The producers passed on the project.   Years later, the principles of that production company made their film The Last Samurai with a “near-identical (and quite unusual) historical premise with numerous other uncanny commonalities” including shared historical inaccuracies.  The Benays sued for copyright infringement and breach of an implied-in-fact contract.

They lost.

When a writer with as strong a case as the Benays’ can’t find justice, what is going on?  Mr. Lowe explains the odds against writers:

“In over 50 such copyright infringement cases against studios and networks decided by courts in the Second and Ninth Circuits between 1990 and 2010, every final decision handed down was in favor of the defendants.”

He also observes: “The determination of each case now rests almost entirely in the unfettered discretion of trial judges, who have consistently dismissed plaintiffs’ claims… While the courts may believe that sheltering studios from suit helps prevent the stifling of their artistic expression, stripping authors of virtually any hope of prevailing on infringement claims is just as chilling to the arts as making it too easy to assert those claims.”

So that’s how it stands for writers  today.  Even if you can prove earlier access by the producer (as my screenwriter friend did in his lawsuit), even when the two properties have essentially identical titles and uncannily similar plots, the studios will still defeat you.  What’s the solution for writers?

I’m sad to say, I don’t think there is one.