Screenplay Plaintiffs Can Proceed Against Production Co., But Not Film Distributor

“We are pleased with the court's decision and the vindication of our clients,” says O'Melveny & Myers partner Daniel Petrocelli, who represents Warner Bros. and Logan. Petrocelli was brought into the case last year after the lawyers received anonymous letters attaching three purported e-mails among the defendants that supported the Benays' claims. The Benays sought to reopen discovery, based on the new documents. Warner Bros. and Logan, joined by the other defendants, moved for terminating sanctions against the Benays, arguing that they forged the e-mails.

Petrocelli has some experience with accusations of altered documents. In 2004, he won dismissal of a long-running dispute against The Walt Disney Co. over Winnie the Pooh royalties, on the basis that the plaintiff had altered memos in an attempt to cover up for having stolen documents out of the company's trash.

In The Last Samurai case, Gutierrez declined to grant terminating sanctions, concluding there wasn't enough evidence to prove the Benays had created the false e-mails. “Although the circumstances, content and timing of the anonymous mailing are suspicious and Defendants have made a strong showing regarding their falsity, there simply is not enough evidence that Plaintiffs authored the documents, sent them to Defendants' counsel, or sought to reopen discovery with the knowledge that they were false,” Gutierrez wrote.

The dispute originated when a literary agent for the Benays pitched The Last Samurai screenplay to Richard Solomon, then the president of production at Bedford Falls. The agent provided the screenplay with the understanding that if Bedford Falls used it to make a movie, the Benays would be paid for it. Solomon told the agent that he decided to “pass” in favor of a similar project, which ended up being the film The Last Samurai, starring Tom Cruise. The film grossed $456.7 million in box office receipts worldwide.

The Benays sued in 2005, claiming copyright infringement and breach of an implied-in-fact contract. In 2008, Gutierrez granted summary judgment to the defendants, but the U.S. Court of Appeals for the Ninth Circuit reversed on the contract claims. Benay v. Warner Bros. Entertainment Inc., 607 F.3d 620 (9th Cir. 2010).

Gutierrez has concluded that the Benays had not alleged a sufficient relationship, or “privity,” with Warner Bros. or Logan, but that Zwick and Herskovitz, as partners in Bedford Falls, could not escape similar arguments because Solomon, one of their executives, had spoken to the brothers about the script.

Two brothers who assert that their copyrighted screenplay The Last Samurai was stolen to make the 2003 film of the same name can go to trial against the production company and its principals, but not distributor Warner Bros. Entertainment or writer John Logan, a federal judge has ruled. In a Feb. 14 order on summary judgment, U.S. District Judge Philip Gutierrez in Los Angeles found that Aaron and Matthew Benay, who had pitched their screenplay idea to The Bedford Falls Co. and one of its executives in 2000, could pursue their implied-in-fact contract claims against the production company and its two partners, Edward Zwick and Marshall Herskovitz. Gutierrez granted summary judgment, however, for Warner Bros. and Logan. Benay v. Warner Bros. Entertainment Inc., 08-55719.

'We are gratified by the court's dismissal of Zwick, Herskovitz and Bedford's motion for summary judgment,” John Marder of Marder, Zink & Karlzen in Los Angeles, who represents the Benays, said in a prepared statement. “As for Warner Bros., we are researching our options for appeal. We want to make certain that all the responsible parties are held accountable.”

Attorney Gary Gans, a partner at Los Angeles-based Quinn, Emanuel Urquhart & Sullivan, who represents Zwick, Herskovitz and Bedford, did not return a call for comment.

“We are pleased with the court's decision and the vindication of our clients,” says O'Melveny & Myers partner Daniel Petrocelli, who represents Warner Bros. and Logan. Petrocelli was brought into the case last year after the lawyers received anonymous letters attaching three purported e-mails among the defendants that supported the Benays' claims. The Benays sought to reopen discovery, based on the new documents. Warner Bros. and Logan, joined by the other defendants, moved for terminating sanctions against the Benays, arguing that they forged the e-mails.

Petrocelli has some experience with accusations of altered documents. In 2004, he won dismissal of a long-running dispute against The Walt Disney Co. over Winnie the Pooh royalties, on the basis that the plaintiff had altered memos in an attempt to cover up for having stolen documents out of the company's trash.

In The Last Samurai case, Gutierrez declined to grant terminating sanctions, concluding there wasn't enough evidence to prove the Benays had created the false e-mails. “Although the circumstances, content and timing of the anonymous mailing are suspicious and Defendants have made a strong showing regarding their falsity, there simply is not enough evidence that Plaintiffs authored the documents, sent them to Defendants' counsel, or sought to reopen discovery with the knowledge that they were false,” Gutierrez wrote.

The dispute originated when a literary agent for the Benays pitched The Last Samurai screenplay to Richard Solomon, then the president of production at Bedford Falls. The agent provided the screenplay with the understanding that if Bedford Falls used it to make a movie, the Benays would be paid for it. Solomon told the agent that he decided to “pass” in favor of a similar project, which ended up being the film The Last Samurai, starring Tom Cruise. The film grossed $456.7 million in box office receipts worldwide.

The Benays sued in 2005, claiming copyright infringement and breach of an implied-in-fact contract. In 2008, Gutierrez granted summary judgment to the defendants, but the U.S. Court of Appeals for the Ninth Circuit reversed on the contract claims. Benay v. Warner Bros. Entertainment Inc. , 607 F.3d 620 (9th Cir. 2010).

Gutierrez has concluded that the Benays had not alleged a sufficient relationship, or “privity,” with Warner Bros. or Logan, but that Zwick and Herskovitz, as partners in Bedford Falls, could not escape similar arguments because Solomon, one of their executives, had spoken to the brothers about the script.