The Craft & Trade: May 2006 Archives

Grosso goes all inA landmark case is finally making its way to a courthouse near you (if you live in L.A.), and it could potentially affect how every screenwriter does business in this town. Possibly for the better, but possibly for the worse.

Call this one a case of “be careful what you wish for.”

Here’s the background. In 1996, a writer named Jeff Grosso submitted a screenplay about the world of undergound poker to a production company named Gotham Entertainment, which had a first-look deal at Miramax.

Miramax did not make the film. However, they did produce the movie Rounders in 1998, which is also about the world of underground poker.

Grosso sued.

As we’ve pointed out endlessly here at The Artful Writer, ideas are not considered intellectual property. No one owns them, therefore theft of ideas is impossible. In order to claim that Miramax and the writers and producers of Rounders stole his movie, Grosso had to show that they stole some of the unique literary expression contained in his screenplay.

He failed to do that. The Ninth Circuit rejected his claims of infringement, stating that the two scripts had substantially different moods, pace, themes, settings, character, sequences and dialogue. The only commonalities were basic poker terms that weren’t unique to the writers, but widely known by anyone who plays the game.

But if infringement were all that Grosso charged, I wouldn’t be writing about it.

Grosso also charged that Miramax had violated an implied contract with him.

An implied contract is defined as:

A contract not expressed by the parties but, rather, suggested from facts and circumstances indicating a mutual intention to contract. Circumstances exist that, according to the ordinary course of dealing and common understanding, demonstrate such an intent sufficient to support a finding of an implied contract. An implied in fact contract does not arise contrary to law or the express declaration of the parties.

Grosso alleged that by accepting the submission of his screenplay, Miramax entered into an implied contract with him. The essence of the implied contract? That if they used his script, they’d have to pay for it.

Used. Now, apparently there’s a different standard for “use” and “infringe.” “Use” can mean “use of ideas,” and so, the Ninth Circuit denied Miramax’s motion for dismissal on that charge. The case goes to a jury now.

Lots of screenwriters have seen this case as a new sword to wield against the companies. Many have had the experience of pitching a concept, getting passed on, and then seeing a film with a similar idea in a movie theater a few years later.

It’s no surprise, therefore, that lots of writers are rooting for Grosso.

Lots…except, say, Brian Koppelman and David Levien. Brian and David are the credited writers of Rounders. It is their claim that the screenplay for Rounders is wholly original to them, and given that the Ninth dismissed Grosso’s infringement claim, it appears that they’re right.

If Grosso should win, what does this mean for the Koppelman and Leviens of the world? Imagine pitching an idea totally original to you, and being told by the studio that they’ll buy it, but only as a rewrite of a prior idea someone else pitched them, because of implied contract.

Imagine selling a spec to a company, only to be told that your original screenplay is actually going to be considered an adaptation of a five year-old spec they didn’t buy…because there’s an implied contract, don’t-you-know…

The truth is that there is no implied contract. Hell, Grosso never even met with any Miramax execs. I hope that the jury sees fit to deny Grosso’s claim.

Of course, if they don’t, not much will change. The studios will simply require all writers to sign statements acknowledging, prior to submission, that there is no implied contract.

If Grosso wins, it will be an empty victory, and possibly a true annoyance. Screenwriters live in an unfair world, to be sure, and studios often bully us. We don’t need “heroes” like Jeff Grosso, though.

I’ll take my chances with writers like Koppelman and Levien. You know. The ones who actually do the work.