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Freelance journalist Dominic Patten is covering the case for Deadline.
Warner Bros Lawyers Dig In Garbage Over ‘Last Samurai’ Suit
Despite a federal judge’s ruling today removing Warner Bros and writer John Logan as defendants from The Last Samurailawsuit, plaintiffs attorney John Marder said he may not be finished with the studio yet. Representing screenwriters Aaron and Matthew Benay, Marder told Deadline he was “researching whether or not I will appeal.” As for Warner Bros, “We are gratified the District Court has completely vindicated us from this spurious claim.” But the judge also rejected efforts by Warner Bros’ outside counsel Daniel Petrocelli to secure compensation for the studio and Logan. “We are very pleased with the court’s ruling denying Warner Bros and John Logan’s request for terminating and monetary sanction,” Marder said. But Bedford Falls’ Ed Zwick, who directed The Last Samurai, and Marshall Herskowtiz still will have to defend themselves in court.
Judge Philip Gutierrez, in a dense 17-page decision that you can read here, dismissed Bedford Falls counsel’s attempt to use the statute of limitations and grounds of privy to release the company and its executives from the case. The judge called this an “attempt to muddy the waters” and noted how former Bedford Falls production chief Richard Solomon in fact had received the script from the Benays’ literary agent David Philips — even though Solomon passed on the script.
“We’re pleased that the court denied Zwick, Herskovitz, and Bedford’s Motion for Summary Judgment,” Aaron Benay told Deadline. “After 10 years, we’ll finally have our day in court. We’re very confident that a jury will find that our script “The Last Samurai” is in fact their film “The Last Samurai”.
The almost decade-long case involved plaintiffs Aaron and Matthew Benay who say the 2003 Tom Cruise blockbuster was lifted by production company Bedford Falls and Warner Bros from their 1999 script. The judge ruled that the Benays failed “to raise a triable issue of fact regarding privity with Warner Bros” regarding liability from the breach of an implied contract if the studio had been proven to have actually seen the Benay brother’s WGA registered script. The ruling comes just two days after a short hearing on the matter in which the Judge sparred with lawyers from both parties over matters of procedure and the admissibility of an anonymous March 2011 letter lambasting Warner Bros. The judge has put off any decision on whether the letter, which neither side wants allowed, will be admitted as evidence. The case is scheduled to go to trial in late March.
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Aren’t Zwick and Herskovitz receiving a WGA Lifetime Achievement award this weekend? What exactly is their achievement–stealing from fellow writers to enrich themselves and win awards? These two men are repeat offenders. They were also at the nexus of the theft in the Shakespeare in Love idea theft case. Appalling.
As a longtime WGA member, I too, find that lauding Zwick and Herskovitz is an outrage. We have thousands of members in good standing with impeccable professional and ethical records. Those are the writers that should be celebrated rather than liars and thieves.
There will certainly be a great deal of ill-informed and mean-spirited spewing on this site regarding this matter, but I’m going to try to “get in early” with some rationality.
Intellectual property theft is much less common in our industry than one might think, and parallel creation is much more common than writers like to imagine. Moreover, the common law of intellectual property protection — doctrines like “implied contract” and “unfair competition” and so on — were developed in an era in which both motion pictures and the sale of recorded music were new phenomena.
One element of these proceedings that is often ignored is the motivation (or lack thereof) for intellectual property theft on the part of filmmakers and the studios. If Ed and Marshall had known of a pre-existing screenplay (and they certainly might have) purchasing that screenplay from writers not yet fully-established would have cost a comparatively modest amount that could likely have been ‘covered’ from Bedford Falls’ development discretionary fund. Put simply, it’s cheaper to ‘screw over’ inexperienced writers than to steal from them.
Then, too, there is the confusing fact that at least some of the Herskowitz/Zwick film was based on one of several French and English officers who fought as Samurai in a number of mid-18th century Japanese conflicts and on several American officers who participated on both sides of the Tai-Ping Rebellion in China (now THERE’s a story).
On the other side of the argument is the doctrine of “unconscious appropriation,” which applies to involuntary ‘borrowing’ of creative elements without remembering the source of those elements. The great George Harrison, for example, lost a famous copyright infringement suit that alleged that “My Sweet Lord” infringed upon the copyright for The Shirelles’ “He’s So Fine” — which Harrison was assumed to have heard — despite the testimony of David Bowie who claimed that he was present when Harrison ‘created’ the song’s melody at the piano. We all read (and pass on) a million books and scripts and treatments — who among us can say with certainty that we haven’t pulled something created by someone else and encountered years before out of the dusty basement of our memory and thought we were having a “new idea”?
So, what’s my point? My point is that this stuff is complicated and hard to figure out and that demonizing either the writer-plaintiffs as money-grubbing weasels or the filmmakers as cynical thieves is silly and unfair. Plus…at the end of the day the ‘E&0′ insurance will cover all of it.
Finally…I’ve known these guys (Herskovitz and Zwick) for a while. While I don’t feel much personal affinity for either of them, I always found them to be straightforward and honest in their business dealings. Douche-y they may sometimes be…thieving they aren’t.
Worker Among Workers, you’re right that these cases are complex, and that’s why you need to know the facts before you can speak…
This wasn’t a case of unconscious appropriation, but of simple appropriation. Zwick and Herskovitz had a cattle drive movie set in Japan called “West of the Rising Sun”. They received the script for “The Last Samurai”. And then suddenly, their project was reborn as story about a soldier recruited by the Emperor to train his army–and called THE LAST SAMURAI.
It’s all well and good to say that Zwick and Herskovitz had plenty of money, so they’d just buy the script out of their discretionary fund. Well, actually they couldn’t. The reason is that the script was optioned by New Regency. So Zwick said WTF, I’ll just do my own version. And if you were a development exec at the time, you’ll remember that it was quite bizarre that there were two projects circulating at the time called “The Last Samurai”, about the very same FICTIONAL thing.
Finally, I should point out that E&O insurance actually won’t pay for it all. That’s because Zwick and Herskovitz were denied coverage by their insurance company. How do I know? Because they sued. And they lost. So they appealed. And they lost again. This one they may just have to pay out of their own pockets.
The lesson is that sometimes guys who are douche-y ARE in fact thieves.
One of the most logical, relevant, and well-composed comments I have ever seen on Deadline. Props to you, sir.
Thank you, that was very insightful.
There’s going to be very few comments here because sadly, no one gives a crap. But happily they’ll all have their day in court.
But dressing theft up in fancy words like the ones above is a real fucking outrage. IF it’s judged theft, theft is theft however you want to put it. Spending ten years trying to get back what these writers may deserve is also another fucking outrage. But then that’s how these Studio lawyers behave.
Zwick and Herskovitz lives and careers have dramatically improved since the successful release of the film. If it was because they happened to forget that a script they were given is a lot like the script they wrote, the writers, who they forget gave it to them, deserve some of, if not all the money. Why? Because the clever bastards may have forgotten they stole the idea.
Zwick and Herskovitz are guilty they have inflated egos they thought they could rip these guys off. Rick Solomon is guilty of a cover-up after the fact. It’s shocking that writers like Ed and Marshall could pull this shit they don’t remember what it was like when they were starting out. The most brilliant thing they ever did was the TV special that put them on the map the fake newscast about the nuclear bomb that went off in the coastal town I can’t remember the title but it’s on imdb it was so smart and so well done. Now look at them. They will settle before a jury is chosen and the sad part is that the writers guild will never make the credits accurate which is a shame but that will be part of the settlement agreement that they take the money and go away.
The writers are decent, fair guys and would never make any claims that were not true. If they contend that their script was read by anyone at WB or Zwick/Herskovitz and this reading predates the development of the project that became THE LAST SAMURAI then it was. I know these men and they would never lie. Their script is essentially the same idea and if it inspired the creators of the film to tackle the same subject using similar structure and POV then they are entitled to equitable compensation.
All of you ready to pounce on Ed/Marshall and Rick, read this from Reuters discussing the case:
“In the days before the lower court was to take up the case again, “all parties received copies of an anonymous letter attaching what purported to be three emails” with a Warner Bros. executive discussing the movie.
But the emails were fakes.”
“All three emails are erroneously time-stamped ‘Pacific Standard Time’ instead of ‘Pacific Daylight Time,’ and all three contain the same subtle printing errors that purportedly show they were manufactured using a single blank template,” the judge wrote.
In other words, their case was attempted to be bolstered by phony emails!!!!!!
I can also tell you that Plaintiffs have no proof their script was ever sent or received; merely their assertion that it was… There is NO paper trail that backs up their claim.
Unless you count fake emails…
ROFLMAO at all you people ready to assume that Ed and Marshall are thieves.
Pay attention to the facts…. not the headlines.
Speaking of no paper trail, there is no trail whatsoever linking the plaintiffs to those emails or the controversial letter. That’s why the opposing counsel was digging in the trash in desperation. On the contrary, the plaintiffs have a staggering amount of proof that the defendants received their script “The Last Samurai”–not the least of which is that they actually produced a film entitled “The Last Samurai”!
Wake up–Warner Bros. has unlimited resources to pay expert witnesses hundreds of thousands of dollars to say anything is a fraud. It’s a shame that the plaintiff’s don’t have the resources to go toe to toe with them and prove that the documents are real. But then who does? I wish em luck.
While the back and forth harping is fascinating, has anyone actually read both scripts? Anyone reading now? Do tell……
The emails are fakes but they came from a gadfly somebody who decided to insert phony evidence into the case for his own reason. My guess is that he is a disgruntled Warner Bros. former employee who tried to help the plaintiffs his letter was very harsh and it’s obvious he worked there at some point. This case will never go to trial it will be settled for a fair amount they will be paid what they would have been paid if their script had been purchased and then rewritten by Ed and Marshall.
Sounds like REAL truth never comes out in this country & In U.S. Court systems, In entertainment business any longer or never existed since the beginning .
it’s all about Color of Money & to my eyes, It’s all fraud whoever & whatever comes out from mouth & from typings.