With a legal sword flashing in the long-running litigation over a samurai-themed Hollywood historic epic, a District Court in Los Angeles has granted summary judgment and cut out defendants Warner Bros. and co-defendant John Logan from an implied-in-fact contract claim, finding lack of privity between plaintiffs and defendants. This case dates to the early part of this decade when plaintiff Benay brothers (Aaron and Matthew) claimed that in May, 2000, they submitted their script for “The Last Samurai” to Edward Zwick and Marshall Herskovitz and their production company, Bedford Falls, and to Warner Bros., through their literary agent.  Their script featured a fictional U.S. Civil War veteran recruited by the Emperor of Japan to train a newly formed Imperial Army in a fight against the rebelling samurai.  The filmmakers and studio passed on the project, with Zwick and Herskovitz citing a Japanese cattle drive project they were already developing.  But the plaintiffs contend that soon after, the project morphed into a project with the same protagonist, premise and title of the Benay script.

In a 2010 ruling, the U.S. Ninth Circuit Court of Appeals analyzed the Benay script and the movie, and found that their “similarities are substantial for purposes of an implied-in-fact contract under California law” (Benay v. Warner Bros.).  The ruling was considered watershed, as it solidified protection for the ideas of writers and other creative professionals under state law.

As an alternative to a copyright claim in federal court, a writer who submits ideas to a person or company in a position to produce a work based upon the ideas, under circumstances where the recipient expressly or impliedly agreed to pay if the ideas are used, may have claims in state court for breach of contract and confidence, sometimes called “idea submission” claims.  These claims differ from copyright.  Most importantly, whereas the copyright law only protects expressions, contract and confidence claims may rest on a promise to pay for use of ideas.  Thus, if writers feel that their ideas were used but the expressions in the submitted work were not copied, an idea submission claim in state court may be the best, or only, remedy.

In this most recent summary judgment opinion, the court held that plaintiffs failed to adduce sufficient facts to support a finding of privity with both Warner Bros. and John Logan.  Privity between an author and producer or director – or someone acting as their agent – is a necessary element for an implied-in-fact contract.   The court rejected plaintiffs’ theories  supporting their privity argument at the summary judgment stage because they had not been previously made, either in plaintiffs’ complaint or during discovery.  Plaintiffs’ asserted that Bedford Falls — with which plaintiffs had an alleged understanding that if their idea was used, they would be compensated — had hired Logan to write the Last Samurai script and the circumstances of Logan’s employment indicated that he knew of the agreement between plaintiffs and Bedford Falls. The court found this insufficient under established precedent to find privity between plaintiffs’ and defendant Logan.

All the defendants filed a motion for terminating or other sanctions regarding an annonymous mailing received by all the parties just days before the scheduling conference following remand was to take place.  The mailing contained was purported to be three e-mails amongst the defendants discussing the Benay’s submission and a fax conveying notated excerpts from the Benay screenplay.  Despite forensic evidence presented by the defendants that they claim established the documents as forgeries, the court found that there was an insufficient showing of culpability on the part of the Plaintiffs’ or their counsel to warrant sanctions.

Co-defendants  Zwick (director of The Last Samurai) and Herskovitz (a co-author of the film’s screenplay)  were denied their moves for summary judgment; the case may now proceed to trial to determine  if Richard Solomon, the former president of Bedford Falls to whom plaintiffs had pitched their screenplay, also acted as an agent for defendants Zwick and Herskovitz in their individual capacities.  Because privity could be established based on agency theories in which Solomon acted as agent for Zwick and Herskovitz, the court denied defendants summary judgment.

This is not the first time Zwick has faced allegations of misappropriating script ideas.  Miller v. Miramax invloved the 1998 film “Shakespeare In Love,”  of which two writers claimed that Zwick appropriated elements from their script, about a young Shakespeare with writer’s block that is unlocked by a romance.  After a federal judge ordered the studios to disclose their accounting records for a calculation of damages, the parties settled out of court.