A federal judge in California has refused to dismiss writer Joe Quirk's claim that Sony Pictures breached an implied contract by allegedly stealing his 1998 novel to create Premium Rush, planned for a Aug. 24 release date.
The decision not only impacts Sony's movie about an adventurous bike messenger played by Joseph Gordon-Levitt but also Hollywood studios as they increasingly confront allegations of idea theft.
Quirk is the author of the 1998 novel Ultimate Rush. As the book was being published, Quirk retained an agent who distributed prerelease copies and synopses around Hollywood for a possible movie deal. The book was optioned by Warner Bros., and a screenplay was written and distributed around town. But no film was made, and the option expired in 2002.
A decade later, Quirk is suing Sony, producer Pariah, director David Koepp and co-screenwriter John Kamps for breaching an implied agreement in developing a film that he believes is derived from his novel.
Breach of an implied contract is a hot subject of entertainment law. In making this claim, plaintiffs have to show that when an idea is submitted, there's an expectation that if the material is later used, the writer will get something in return. That's an easier hurdle than an allegation of copyright infringement, which requires the plaintiff to demonstrate "substantially similar expression."
Still, even if a writer shows that his idea was submitted to the producers and the idea was later used, that's not an automatic victory. There's also a concept called "privity," loosely meaning that both parties had a close enough relationship to know the terms of the bargain. A lack of privity is a core reason why Warner Bros. earlier this year escaped a lawsuit from Aaron and Matthew Benay that alleged the studio had breached an implied contract on their script to create The Last Samurai.
What exactly does a writer have to show to demonstrate privity? That's where the judge's noteworthy decision on Quirk's lawsuit comes in.
Quirk has alleged that Sony subsidiary Columbia Pictures got a copy of his novel but hasn't yet showed that Sony or any of the other defendants actually saw it. Instead, he raises a theory that copies of the novel and subsequent screenplay circulated around Hollywood and that the defendants had somehow stumbled upon one.
Judge Richard Seeborg sums up the theory by saying that Quirk "argues for a rule that essentially would permit an implied contract claim whenever a plaintiff can 'trace' a copy of a work allegedly used by a defendant back to the recipient of plaintiff’s initial movie proposal, notwithstanding the number of intervening hands that touched it."
Such a rule, says the judge, stretches a theory of an implied contract breach "beyond its breaking point."
But in a rather surprising move, Seeborg is leaving the door ajar. He says that Quirk will need to show a “bilateral understanding of payment” and prove "not only that a copy of the novel originally provided by his agent ended up in the [producers'] hands but also that each person who accepted it along the way did so with the expectation that payment would be due if the ideas were utilized."
Seeborg then goes on to say that Sony and the other defendants are prematurely discounting such a possibility. He writes:
"The Moving Defendants press too far the notion that they are necessarily insulated from any implied contract claim simply because they are not the precise entities and individuals to whom Quirk claims his novel was submitted. There are circumstances under which the expectation of payment may survive the transfer of a book from one person or entity to another."
Sony's motion to dismiss the lawsuit is thus rejected because the judge concludes that whether Quirk will be able to show that his works were transferred from one industry hand to another, landing in the hands of the makers of Premium Rush, all with the expectation that Quirk would be compensated, is a "close call."
Sony declined comment.
Read the decision on the next page.