Patrick Wilson and Vera Farmiga in ‘The Conjuring’ (Warner Bros.)
Gerald Brittle says the horror movies infringe on his 1980 book The Demonologist, which tells the stories of paranormal investigators Ed and Lorraine Warren. In a massive 355-page amended complaint filed Wednesday in Virginia federal court, he's upping the ante against Warner Bros., New Line Productions, and director James Wan, among others.
The author claims The Conjuring, The Conjuring 2, and Annabelle infringe on his exclusive rights to create derivative works based on the Warrens' cases. He says, in a 1978 agreement for his book, the couple agreed to a no "competing work" provision that is still in effect. Under it, Brittle says, the Warrens aren't allowed to make or contract any works based on the "same subject" as The Demonologist, specifically their "lives and experiences as paranormal investigators."
"[W]hen Lorraine Warren granted the Defendants the right to use the Warren Case Files, which the Defendants themselves repeatedly state their movies are based on, she could not have done so because she had years earlier contractually granted that exclusive right to use those same Warren cases, Warren Case Files, and related materials to the Plaintiff," writes attorney Patrick C. Henry II. "Lorraine Warren had nothing to convey."
Had defendants done a chain-of-title search, Brittle claims, they would have found they needed his — not Lorraine's — permission and support to legally produce their films. Warren and Brittle initially gave their subsidiary motion picture rights to book publisher Prentice Hall, which later transferred them to Brittle with Warren's agreement.
"It is very hard to believe that a large conglomerate such as Warner Brothers, with their army of lawyers and who specializes in intellectual property rights deals, would not have found The Demonologist book or the deals related to it, or Brittle for that matter," Henry writes, adding that the "only logical conclusion" is that defendants knew about the deals and ignored them thinking "they would never get caught."
The author further claims New Line explicitly told The Conjuring screenwriters not to read his book because the studio didn't have the rights to it. "Defendants have built a billion-dollar franchise based on rights they knew they did not possess," Henry writes. "They ignored this 'inconvenient' fact and willfully proceeded anyway."
Brittle is now seeking nearly a billion dollars consisting of disgorgement of defendants' profits and trebled damages from the alleged conspiracy — plus any profits from the stock premium that AT&T is paying Time Warner in their merger that is attributable to the franchise, and an injunction to stop the release of Annabelle 2 and to prevent any other future films connected to the Warrens from being made.
In a twist of fate, Brittle's amended complaint uses Warner Bros. own legal arguments for disgorgement in its screener piracy lawsuit against Innovative Artists. "Warner Brothers alleges that Innovative willfully ignored and then infringed upon its exclusive copyright protected rights (i.e., reproduction, distribution, and performance) which has resulted in 'irreparable harm' to Warner Brothers," writes Henry. "Warner Brothers further alleges the appropriate remedy under the law for knowing and willful infringement is disgorgement of all of the infringer's profits derived from said infringement and an injunction to insure the pattern of infringement is stopped."
According to the complaint, Brittle's attorneys sent a cease and desist to defendants before the release of The Conjuring 2, but they claimed the films weren't based on The Demonologist but instead on "historical facts."
It's a common argument raised during copyright dust-ups involving true-life tales. Here, though, Brittle's legal team says it has an ace in the hole: The Demonologist isn't historical fact because the Warrens lied about what happened in their stories.
"Lorraine and Ed Warrens claims of what happened in their Perron Farmhouse Case File, which the Defendants freely and publicly admit their The Conjuring movie was based on, does not at all jive with the real historical facts," Henry writes. "This is a pattern of deceit that is part of a scheme that the Warrens have perpetuated for years ... There are no historical facts of a witch ever existing at the Perron farmhouse, a witch hanging herself, possession, Satanic worship, or child sacrifice."
Brittle says at the time he was writing The Demonologist, he believed the Warrens' accounts of their work to be true. Now believing he was duped, the author says the allegedly based on real-life films are "at best" unauthorized derivative works.
"To the extent the Defendants' movies are not based on 'historical facts' they cannot claim they are protected by the 'fair use' doctrine exemption to copyright." Therefore, Henry argues, The Demonologist is entitled to "thick" copyright protection, which lowers the threshold for a finding of substantial similarity.
Henry also notes that proving access is typically the most difficult aspect of succeeding in a copyright infringement case, but he says he'll have no problem showing it here. According to the complaint, Wan publicly praised Brittle's book on Twitter in 2011 — before The Conjuring script was written. "I watch/read a lot of scary stories. But f--- , THE DEMONOLOGIST, true life account of Ed & Lorraine Warren, is the scariest book I've read," states Wan's tweet.
Brittle is suing for copyright infringement, common law trespass to chattels, statutory business conspiracy, conversion and tortious interference with contract. He has also filed a notice to terminate a share of the copyright in The Demonologist that he had granted to Lorraine Warren, which will become effective Oct. 31.
A Warner Bros. spokesman tells The Hollywood Reporter the studio has not yet been served with the complaint and declined further comment. A representative for Wan deferred comment to Warners.
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