I was recently named in a lawsuit filed by an author named Joe Quirk; he wrote a novel published in 1997 about a rollerblading messenger in San Francisco called Ultimate Rush. Quirk believes his novel must be the basis for Premium Rush, a movie I produced for Sony Pictures about a bike messenger in New York (which will be released next year). In my opinion, there is no credible proof that I, the two writers of the film, or anyone who had input on Premium Rush ever heard of or read Mr. Quirk’s masterwork. I had never heard of the book until my lawyer called me about the suit. In the last two weeks, I've written about how studios could save money and use it to make more movies if they'd cut lavish celebrity perk packages and pointless producer deals. This week I have a final cost-cutting solution, but it will take government action, not executive action: enact tort reform that will stop these frivolous lawsuits. Groundless plagiarism charges like the ones filed against me and Sony Pictures Entertainment are far too common in Hollywood, and we need a way to cut down the needless legal costs and nuisance payouts involved.
I’m not suggesting that there is anything wrong with suing when you’ve been wronged. I’ve been wronged and I’ve sued and I’ve always come out ahead. Without question, I would have continued to pursue all of those cases even if the courts had a strict “loser pays” rule in effect like they do in England and other countries: If you sue someone and lose, you have to pay your opponent’s legal expenses. I believe most people who wrongly accuse studios and filmmakers of using their original work without permission or payment would never file a suit if they knew they'd be forced to reimburse the other side's legal costs assuming they did not prevail. More important, these cases would would be almost nonexistent if plaintiffs' lawyers were liable for some portion of those expenses; say, a percentage equal to what their contingency fee would be if they prevailed.
In most of the “you stole my idea for a movie” cases I’ve heard of, someone sees or hears of a film that bears a similarity to a screenplay, or some other written material that the aggrieved created, and they figure their idea was so unique that it must have been stolen. Sylvester Stallone was just sued by a man claiming that the actor-writer-director stole his idea for the hit movie The Expendables. Recently, I’ve read other stories about similar cases involving Kung Fu Panda, The Hangover Part II, and even one that was filed by a nun in Harlem claiming that her 1987 autobiography was the basis of the movie The Sister Act, which was released in 1992.
In my case, here was how far Mr. Quirk had to stretch to make a connection between me and his book: An e-mail from his lawyer (the author had to speak to nearly 50 before he'd find one who would take his case) points out that his novel was submitted to producer-director Lili Zanuck in 1997, and I produced a television show called Revelations that Zanuck directed in 2005. Therefore her company receiving this book and my working with her eight years later is evidence that I might have somehow gotten the book or idea from her. A study by the University of Milan just estimated that the number of acquaintances separating any two people in the world is 4.74 , so it doesn’t seem that difficult to envision how one person could have imparted an idea to another, but that doesn’t make it true or anywhere close to probable. As far as I know, nobody has spoken to Lili to see if she ever read the book or spoke to me about it, which she did not. Nobody from Quirk’s team ever called me to ask me anything before engaging in litigation. If they had, they would have found out that I was brought on to the project after the idea was pitched to Sony, making it pretty difficult for me to steal the idea or plot of Quirk’s book for a movie adaptation, since I wasn’t yet involved with it. Even if you take me out of it, I would bet all the money I have that nobody involved with Premium Rush stole any element from Quirk. Not just because the connections between the projects are laughably tenuous, but because I know the writers who created our project (David Koepp, who also directed it, and John Kamps), and they would never steal anything from anyone. They say they had never heard of the book either, and I am sure they are truthful. I understand that Quirk has found similar elements in our movie that are in his book (messengers racing through the city, a package, bad guys, etc.), but there are many, many books written about many topics. If someone writes a thriller about a truck driver, it is going to have similar themes, concepts, scenes, and even characters to any other thriller written about a truck driver, even if the second writer never read the work of the first. Some scholars suggest that there are only seven original plots, anyway.
Even though the Quirk lawsuit — and probably most others like it — are meritless and would lose if a jury verdict were rendered, they still are costly. The studios spend hundreds of thousands if not millions of dollars defending themselves in each of these situations, even when they win, which is almost always. So why do lawyers, most of whom work on contingency, take on these cases at all if their chances are so slim? Because the studios often settle them, paying out some lesser sum to dispense with the matter and save their company the huge amounts it would take to fight and win; and to spare their executives the many hours they would have to spend in depositions during the discovery phase and in court during the trial, when they should be working on making movies. In fact, I think tying up a studio head for as much time as possible is used by lawyers as a pressure tactic to induce a favorable settlement. And when a plaintiff’s lawyer gets his 33 or 40 percent share of a settlement of a few hundred thousand dollars, he is just encouraged to file more of the same kinds of suits.
Tort reform would affect almost every industry. The congressional budget office has estimated that limits on awards, legal fees and the statute of limitations for medical malpractice claims would reduce federal health care spending by $34 billion alone between 2011 and 2012. Our congress instituting curbs on civil litigation is a larger issue for the economy, but it would certainly have a significant impact on the film business and help bolster one of our few world leading industries.
On the other hand, let's say Congress doesn’t use this crisis environment to enact legislation on litigation that would make business stronger. The film studios could still do their part by growing a pair and committing to always fighting specious suits waged by the ever leeching plaintiff’s bar. This will let them know that there is no easy lucre to be mined by representing hopeful writers who want to believe that they were finally proven right about their neglected creations, no matter how improbable the facts behind their cases are.
Okay, enough bitching about costs. Next week, my first positive column.
Gavin Polone is an agent turned manager turned producer. His production company, Pariah, has brought you such movies and TV shows as Panic Room, Zombieland, Gilmore Girls, and Curb Your Enthusiasm. Follow him on Twitter @gavinpolone.