Grosso So-So
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.
At the time Grosso submitted his script to Gotham/Miramax, it obviously wasn’t good enough to be produced, whether it was set against the world of poker or hopscotch. Whereas, the Rounders script was.
There are plenty of writers working on similar ideas at any given time. It’s the uniqueness you bring to the idea and your ability to get it into the right hands that will make the sale. Grosso would have been better off realizing that he was on track with a saleable idea and spent more time on his execution the next time. Or, since he had an underworld poker script done, he could have leveraged a sale off the success of Rounders.
I doubt he’ll find any leverage off his law suit.
Ugh. Like too many Ninth Circuit decisions this one seems fubar’d, thought it is surprising that the Supreme Court refused to hear the appeal. It seems to me, as a practical matter, it means that anyone requesting a script will/should make sure that the writer sign a waiver of implied contract before submitting. Sloppy jurisprudence and another unnecessary level of bureaucracy, but I imagine Mr. Grosso will be the first and last to win such a claim (if he even wins at trial at all).
i’ve got scripts all over town. i sent out a script about a bank robber that wants to pull one last job then retire - few years later, boom, a movie with just such a plot comes out.
also sent out one with spaceships that attack earth. few years later, boom, similar movie comes out.
the list goes on and on. i’ve got implied deals with every studio. i expect some implied checks in the mail, dammit. don’t make me imply i’m going to sue. don’t make me. i’m very close to implying…
z
I’ve always found it’s the amateurs who worry about their ideas being “stolen”…As for this notion of “implied contract”, that truly stinks in my view of someone who wants to get a loophole on their side, not someone who truly cares about justice. If considering the notion of justice, it’s the Grossos of this world that make it all the harder for others to get spec material “out there”. How long are release forms going to have to be by the time they’re finished with all this stuff about stealing ideas???
Amen Craig. I agree wholeheartedly! Looks like someone trying to get rich without much effort.
In almost any context, “implied contract” feels like an oxymoron, or at least an oxy-learning-challenged. But to say that touching a script is an implied contract to pay for the ideas within is ridiculous.
It’s newbie writers who are worried about having their scripts “stolen,” and it’s newbie writers who would be most hurt by any attempt to enforce this concept. No producer or studio executive would risk reading a script by a non-established writer, for fear of someone trying to use “implied contract” on them 10 years later.
Has anyone here read the Grasso script in question? I’m always curious in a case like this to read the supposed stolen script to see if anything was in fact similar to the produced movie.
The ninth circuit judges read both scripts. As Craig indicates, they rejected Grosso’s 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. I know two people who have read Grosso’s script and the Koppelman and Levien draft of Rounders that miramax originally bought, and both have said that the scripts are totally different. Grosso’s being more of a heist comedy and rounders being rounders…
Then again, Eddie Murphy claimed he came up with the idea for COMING TO AMERICA all on his own, despite hearing a complete pitch / outline of it from a writer just days previous.
Not that I disagree with your conclusion, Craig, I don’t - just want to say that not always does the other side play fair, either.
Now, I totally agree with everything put forward in regards to Grosso’s idiocy in this debate. And you have to wonder, is this so called “similar” project the only thing Grosso ever put forth? I’d love to know more about this guy. does he have an agent/managers/lawyers? And if so, what’s their take on everything. I could never imagine any sort of rep. going up against a studio in this situation. Hell, even if it’s more defined then this case, I don’t see a rep standing up to the studio juggernaut.
I just wonder that if this guy had hoped to get anything from this, what he put on the line in doing so. Because lets face it; without a new penname, this guy’s career is over before it begun.
Josh:
Like I said…
Of course, in the case of Coming To America, Art Buchwald sued and won, because he had submitted a treatment and Paramount infringed on his copyright.
I also agree with Joshua. The other side doesn’t play fair either. I’m not going to elaborate, but I’ve been in a number of meetings at various prod co’s/studios in town that tell me about this “great idea” they heard, and want to see what I can do with it.
I certainly wish there was some way of protecting our pitches/thoughts/ideas, because it does leave us out here being the creative minds to fill the bottomless pool of today’s studio system, with little to no outright protection.
An odd little sequence of events that happened to me that I don’t yet know how to interpret:
A couple years back, I posted my spec script on inktip (now, I know Craig, you don’t think much of inktip). Part of inktip’s design is that I receive information on who reads the treatment and who downloads the script. If someone downloads the script, I also get contact info.
So, some producer downloaded my script. After three weeks, I dropped a little note in the mail saying “hey, I see you downloaded my script. If you have any questions, give me a call.”
The note was returned unopened — but only apparently. Someone had very carefully worked free the glue from one of the side panels of the envelope, extracted my note and then put it back and wrote “Return to Sender” on the envelope.
It was very cleverly and precisely done, appearing to be done by someone had practiced this particular trick a lot.
Sometimes a wee dram of paranoia might be justified.
An odd little sequence of events that happened to me that I don’t yet know how to interpret:
A couple years back, I posted my spec script on inktip (Craig, I know you don’t think much of inktip but they do track things closely and behave honestly, imho). Part of inktip’s design is that I receive information on who reads the treatment and who downloads the script. If someone downloads the script, I also get contact info.
So, some producer downloaded my script. After three weeks, I dropped a little note in the mail saying “hey, I see you downloaded my script. If you have any questions, give me a call.”
The note was returned unopened — but only apparently. Someone had very carefully worked free the glue from one of the side panels of the envelope, extracted my note and then put it back and wrote “Return to Sender” on the envelope.
It was very cleverly and precisely done, appearing to be done by someone had practiced this particular trick a lot.
Sometimes a wee dram of paranoia might be justified.
sorry for the double post.
Given how often it seems like studios and producers flaunt the terms of actual written contracts, I don’t know how much they’ll be worried about implied contracts.
Guys like whats-his-name make my blood boil. All they do is add to the confusion of the world.
Why does it seem like nine times out of ten, lawsuits are for the talentless losers…
Wasted energy when he could be writing another script…maybe a better one…
Sam Goldwyn must be turning in his grave. Everyone knows an implied contract isn’t worth the paper it’s printed on.
Writers struggling to break into the business have already lost with this lawsuit. Those with no credits, no representation, and no incestuous ties will find it harder to get someone to read them, because every case like this validates their legal paranoia.
If he wins, I can see agencies severly slimming down on reading newbies as well. I’m sure they wouldn’t want a submission to lead to an implication of representation.
Yeah, you can sign a waiver, but that means sending it out to the writer, making sure you get it back, filing it, checking that a submitted script has a waiver on hand — then rejecting script if no waiver (unopened so that you don’t have someone claiming that you looked at the script anyway)…
Some writers just can’t wrap their heads around the idea that someone thousands of miles away could’ve had the exact same idea.
But maybe, just maybe, they saw the exact same episode of Dateline where you got the inspiration for your script.
Some writers can’t grasp the idea that someone a thousand miles away could’ve had the exact same idea as you.
But maybe,just maybe,they saw the exact same episode of Dateline where you got the inspiration for your script.
Sorry for the double post.
Damn this Artful Writer software!!!
Maybe it doesn’t happen to other people as much as it does me, but there have been numerous times when I’ve had an idea only to see a very similar idea show up in a TV show or movie some time later. Since I’ve usually not even shared my idea with anyone, let alone shopped it to the studios, I know it has to be a case of coincidence (or similar inspiration).
At one point in the mid-1990s, there was a TV character on a weekly show whose life had an increasing similarity to my own life. Something would happen to me, a few weeks later, it would happen to him. I’d do something (starting a business, for example), the character would do the same thing (this character started an almost identical business). It was eerie, but it was still a coincidence.
Ever since then, though, I’ve been a bit wary of Jason Priestly.
Hi Craig,
I’ve been reading you for a while, and this is the first time I’ve dared comment. Over all this time, I’ve noticed your frequent glorification of “the ones who do the work”, and your slogans like, “work=power”, etc.
I wonder, though, in this case, how are Jeff Grosso and Koppelman & Levien really that different? It appears as though both have “done the work”— that is, both wrote a screenplay. One screenplay was then accepted, the other was not. But I’m not sure why Grosso’s efforts take on a degraded status in your posting. If he had pitched his idea WITHOUT writing a whole screenplay, I can see why somebody could fairly say he was trying to get money for work he didn’t do in his lawsuit. But if he actually wrote a screenplay, then he DID do work, and the problem he has (and all those who create things for a living have, really) is that he can’t get paid for the product of his labor unless/until somebody decides to buy it.
Now obviously, his script could’ve been crap, but just giving him the benefit of the doubt for the moment and assuming, that like many newbie writers, his script was his baby and something he poured a great amount of energy into— then why is he worthy of contempt? He did the work, he just didn’t GET THE JOB. It seems to me that GETTING THE JOB is actually the quality you respect, rather than workaholism. Which is odd to me, given that you KNOW “who gets the job” is the product of many factors, not all of them being “who works the hardest”. I can see why you might not be enthused for Grosso to win his case, but is it really fair to imply he didn’t work hard or well, just because he didn’t get the job?
Liz:
I’m sure you want an answer directly from Craig but I just have to interject.
The problem with this case is that Jeff Grosso is suing a company because he believes that if a studio, or any entity reads his script that it becomes an implied contract.
Well now that’s just ludicrous. It’s ludicrous and extremely amateurish.
If someone just merely finishes a screenplay, I don’t respect him as a screenwriter. What I do respect, however, is someone who has respect for the craft and business of screenwriting and doesn’t use companies as scapegoats for a failing career. Being a screenwriter isn’t just about finishing a screenplay. There’s so much more to it and it drives me nuts when a person is naive enough to think that arbitrarily suing a company without cause is good or healthy for the profession of screenwriters.
Many times legal action and arbitration is necessary. This is one of those time when it’s not.
No, I don’t respect Jeff Grosso. And I wonder if he even respects himself…
Liz:
Thanks for daring. Dare again!
It has to do with how I define the job. I define the job of screenwriter as “writing a movie.”
Not writing a script.
K&L wrote a movie. Grosso wrote a script.
I am not contemptuous of Mr. Grosso, nor have I ever suggested that he didn’t work hard. I simply reject the notion that he’s doing something good for writers.
Then again, none of us know the nature of what went down between Grosso and the studio. Maybe he was burned. Who hasn’t been in this business? And look who he was dealing with. From what I hear the heads of that studio weren’t exactly acting like choir boys at the time…
Hi, all.
Lively discussion, no doubt.
As a fully-disclosed amateur, I have to say that the entire thread has been quite informative.
Not living in LA, and without an attorney, agent, or even a signatory company within 500 miles, these comments are putting everything in perspective.
Between the studios and my peers—I don’t have a chance in hell.
Still, I find it absurd to think you can sue on grounds of implied contract. 15 years (and counting) in the music business has taught me that talent, orginality, etc. don’t matter.
Everybody has an idea; the question is, who gets the credit?
And how do you insulate/install yourself in a position where when you release an idea your name is as attached as ‘quirky’ is to an Allen film, irreversably seared into the mind of whomever hears you speak it (here’s where your attorney poof! pops in and makes each sear a binding, legal document to credit and pay you)?
The thread above isn’t even remotely encouraging, but very interesting…
Hi as a writer working in the UK I have just seen a spec tv film changed slightly and put out onto ITV here. Galling, but no, nothing anyone can do about it, even though I know my script went to the exec producer 2ish years ago.
I also wrote a spec feature based in Minnesota and find it similar to The King recently released - that went into development in 2001 - 2 years before I wrote mine!
It is such a difficult area, but I am interested in Inktip. I know a few people in the US are scathing about the site. I am a member and find the service useful, but would be interested to hear and negative/positive comments.
Gil Brailey
original “When a stranger calls” screewriters suing the producers of the remake :
http://www.bloody-disgusting.com/index.php?Show=6656&Template=newsfull