That letter is all well and good, but it really boils down to just one sentence:
"Judge Feess is faced with an extremely complex legal case, with a contradictory contractual history, making it difficult to ascertain what is legally right."
The gist of the letter is that he wants the judge to overlook " the minutiae of decades-old contractual semantics" to get to what is "morally right." In other words, Fox has a legitimate contractual claim.
When you start talking in those terms, it generally means you've lost. Warner's probably needs to pony up.
"The gist of the letter is that he wants the judge to overlook " the minutiae of decades-old contractual semantics" to get to what is "morally right." In other words, Fox has a legitimate contractual claim."
Of course, when you start choosing the contractual letter of the law over what's morally right, you've completely lost the meaning of a system of *justice* and should invite yourself to the nearest wood chipper.
I know that's a naive way of looking at things, and I think that Fox probably has a legally defensible claim, but somehow I'm still satisfied with with the view from my high horse.
Well, Ponderer, I hope you remember that if you ever enter into a contract that comes into question. Hopefully, the judge won't decide that the other side is "morally right," even if the contractual language is in your favor.
This is show BUSINESS. I haven't seen the documents, but somewhere along the lines, someone apparently signed something for Fox that gives Fox rights under the law. This isn't Alan Moore and Dave Gibbons we're talking about. This is a couple of producers that wanted to use someone else's money to get their movie made. One of those someone else's apparently have a document that says they are entitled to a cut.
"Well, Ponderer, I hope you remember that if you ever enter into a contract that comes into question. Hopefully, the judge won't decide that the other side is "morally right," even if the contractual language is in your favor."
If the judge has any sense, he'll certainly know that I'm ALWAYS morally right. :)
I've got an idea: let's chop the film in half (not the potential grosses - the film itself) and give one portion to Warner Brothers and one portion to Fox. Make them messy halves too: every other minute of the film or something like that. Whichever one relents truly loves Watchmen and gets the whole baby.
"I've always thought abiding by a signed contract is the moral thing to do..."
Wow, no exceptions, no gray areas, not even a smidgen of balancing for the public good?
(I am NOT implying that there is a public good argument for the Watchmen release. All I'm curious about is if this is such a legal slam-dunk, why didn't Fox stop this at the first opportunity? It's bullshit that their legal eagles didn't scrutinize this from day one. It's like the Xerox case - if you don't defend your rights at the earliest possible moment, you've tacitly consented to give up your right to a property. Which is why every restaurant with Oscar in its name gets the shit sued out of it by the Academy.
I have no idea if this holds any kind of water, and I'm sure I'll be corrected, but I am curious if this sort of argument could be applied.)
I have a bad feeling this is going to be quickly become a textbook case of how not to handle yourself when you are in the middle of a legal proceeding.
I understand this was probably written at least in part to mobilize fan(boy) support for the film (and its release), and rally the troops against Fox, but this is questionable behavior when the legal outcome is still very much up in the air.
It's not going to be a make-or-break thing, but if a judge is on the fence about his decision, I certainly doubt the presence of this online "letter" is going to help matters.
"Wow, no exceptions, no gray areas, not even a smidgen of balancing for the public good?"
Contracts are written to eliminate exceptions and gray areas. As for "public good," you're getting into subjective terms that contracts are designed to explicitly avoid.
I certainly haven't read the contract, but apparently Fox has a legal right to the "Watchmen" property. To expect them to ignore that just so fanboys can get their movie is asinine. They have an obligation to their stockholders to claim what legally belongs to them - and to claim it at the highest price, which is why they haven't acted until now. It's business.
"I certainly haven't read the contract, but apparently Fox has a legal right to the "Watchmen" property."
Well, like I ventured above, do they? (Talking hypothetically, of course - I know there's already been one ruling.) Like I said, the Xerox case showed that if you don't defend your rights in a timely manner, you can find your rights forfeited. Is filing a case AFTER a movie has been filmed timely? I don't know, I'm asking.
I haven't seen either the Quitclaim or the Turnaround, but it will come down to the language and not because a studio took a chance. Which is unfortunate because I am really wanting to see this!
Well put letter though.
Fox should really settle this, take their cash and call it a day. Stopping a movie from being released is just a dick move.
"There's a list of people who have rejected the viability of a movie based on Alan Moore and Dave Gibbon's classic graphic novel that reads like a who's who of Hollywood."
Alan Moore's on that list, too, but his opinions don't matter, since you just want to cash in on another bad adaptation.
"After all these years of rejection, this is the same project, the same movie, over which two studios are now spending millions of dollars contesting ownership."
That's because the technology has changed to the point that it doesn't cost the equivalent of Titanic to make Watchmen happen, not because the studios suddenly think this is a viable property.
"Conversely, Warner Brothers called us after having read the script and said they were interested in the movie - yes, they were unsure of the screenplay, and had many questions, but wanted to set a meeting to discuss the project, which they promptly did. Did anyone at Fox ask to meet on the movie? No. Did anyone at Fox express any interest in the movie? No. Express even the slightest interest in the movie? Or the graphic novel? No."
You fail to mention that WB didn't pick up the project until Paramount got bored with it.
"the movie would not only be R rated but a hard R - for graphic violence and explicit sex -"
That probably means it sucks already, since the book is not that violent or sexual.
"We also asked Warner Brothers to support an additional 1 to 1.5 hours of content incurring additional cost that would tie in with the movie but only be featured in DVD iterations of the film. Warners supported the whole package and I cannot begin to emphasize how ballsy and unprecedented a move this was on the part of a major Hollywood studio. Unheard of."
Please. It's no ballsier than the Animatrix and Gothic Knight.
"And would another studio in Hollywood, let alone a studio that didn't show one shred of interest in the movie, not one, have taken such a risk? Would they ever have made such a commitment, a commitment to a film that defied all conventional wisdom? Only the executives at Fox can answer that question. But if they were to be honest, their answer would have to be "No."'
Funny that you're insulting FOX, when they were the ones who gave Star Wars a chance, while WB screwed over THX.
"Shouldn't Warner Brothers be entitled to the spoils - if any -- of the risk they took in supporting and making Watchmen?"
If they don't think Alan Moore is entitled to the merchandise, no.
"Should Fox have any claim on something they could have had but chose to neither support nor show any interest in?"
If they have legal precedence, yes. Doesn't matter whether it's right or wrong; FOX took on the project first. If WB can blow a ton of money on Superman Returns, it can pay its dues to FOX.
"One reason the movie was made was because Warner Brothers spent the time, effort and money to engage with and develop the project. If Watchmen was at Fox the decision to make the movie would never have been made because there was no interest in moving forward with the project."
That's BS, and you know it. If that were the case, you wouldn't have gone studio-hopping for the last 20 years in the first place.
"Does a film studio have the right to stand in the way of an artistic endeavor and determine that it shouldn't exist?"
WB seemed to feel that way about the uncut Eyes Wide Shut...
"For the sake of the artists involved, for the hundreds of people, executives and filmmakers, actors and crew, who invested their time, their money, and dedicated a good portion of their lives in order to bring this extraordinary project to life, the question of what is right is clear and unambiguous - Fox should stand down with its claim."
Shouldn't you be standing down on adapting a book Alan Moore didn't want to see made into a movie?
Ponderer: "Of course, when you start choosing the contractual letter of the law over what's morally right, you've completely lost the meaning of a system of *justice* and should invite yourself to the nearest wood chipper."
So FOX not getting compensated for its own investment in the project is morally right?
"All I'm curious about is if this is such a legal slam-dunk, why didn't Fox stop this at the first opportunity?"
I'm guessing because they were hoping WB would wise up and pay them eventually.
"if you don't defend your rights at the earliest possible moment, you've tacitly consented to give up your right to a property."
Maybe in Zimbabwe, but we do things differently here.
Gordo did what would get you flunked out of a film school's producer program.
The idea of cutting it in half and giving each studio a side to distribute could have worked - they could have had the film running at 5 hours when put together. Flip a coin to see which studio gets Part 1 or 2.
"Maybe in Zimbabwe, but we do things differently here."
WTF? The game is about damages. A suit in this case means that Warner Bros. has damaged Fox's property in some way. If Fox knew from the beginning that they had the legal rights and still let Warner Bros. make the movie, then they ALLOWED the damages to happen. They didn't even issue any kind of claim, statement, or warning. And like the famous Xerox case, they stand a real chance of losing in court because of their failure to act promptly.
Ponderer: As I said before, FOX waited, because it probably expected WB to pony up its end of the deal eventually. When that wasn't the case, it acted. Anyway, I just read about the Xerox case, and it's not the same thing, as Xerox had a patent on its product, while WB does not have distribution and ownership rights for Watchmen.
"As I said before, FOX waited, because it probably expected WB to pony up its end of the deal eventually. "
Uh...how exactly do you envision that ever happening? I don't mean that snidely, I'm just looking for an instance where that has ever happened. If WB believed it had the rights squared away - and the fleet of corporate lawyers would have cleared that at risk of gross malpractice - then there would be no reason for them to contact Fox at all. If Fox believed it had a claim, it was incumbent of them to notify WB before damages could accrue.
Or to put it another way, you stop the dude from burning down your house if you know they're doing it - you don't watch it burn down and then sue.
"Xerox had a patent on its product, while WB does not have distribution and ownership rights for Watchmen. "
Ponderer: "If WB believed it had the rights squared away - and the fleet of corporate lawyers would have cleared that at risk of gross malpractice - then there would be no reason for them to contact Fox at all. If Fox believed it had a claim, it was incumbent of them to notify WB before damages could accrue."
Ok, let's look at this another way. Let's assume that WB did know it had to pay FOX. Why did WB choose to wait to act, knowing it would mean legal action against it?
"Or to put it another way, you stop the dude from burning down your house if you know they're doing it - you don't watch it burn down and then sue."
But if you're just leasing the house, then it's up to the other person to make their payments on time.
"Let's assume that WB did know it had to pay FOX. Why did WB choose to wait to act, knowing it would mean legal action against it?"
Fair enough question. If WB knew for sure that the rights were not clear, then they will lose the case - but Fox will not get the damages it would have if they had protected their rights.. If WB sincerely believed the rights questions had been resolved, then Fox's case is no more than 50/50 because they didn't pursue it. Generally speaking, as I understand it, the onus is on the rights-holder to claim damages.
"Xerox also won, so what's your point? "
Yes, Xerox won after a long, long fight - and they still have to maintain an aggressive stance so the trademark doesn't become genericized. IOW, it's exactly as I said - if you don't aggressively protect your rights, you lose them. Some of the names that HAVE lost legal protection include cellophane, escalator, thermos and even Webster's Dictionary. If you don't aggressively protect yourself, you're simply not on safe legal ground.
Ponderer: "but Fox will not get the damages it would have if they had protected their rights.."
Rights are rights. The contract did not limit when FOX could take legal action, or it would have sued sooner.
"Yes, Xerox won after a long, long fight - and they still have to maintain an aggressive stance so the trademark doesn't become genericized. IOW, it's exactly as I said - if you don't aggressively protect your rights, you lose them."
"The contract did not limit when FOX could take legal action, or it would have sued sooner."
True, but real-world circumstances are taken into account. If you someone builds a skyscraper on a landowner's property without objection, and then the landlord sues after completion - even if it IS the landowner's property - the landowner usually doesn't get to keep the skyscraper. :)
The question will be asked, "Why did your legal department not notify WB that the rights were in dispute?"
It just boggles the mind that the Fox legal dept would not do any kind of due diligence like that. You go out, you protect your rights as early as possible. You don't wait for the other party to tell you what your rights are.
"The same can be said for the producer."
I don't disagree, and that's why there's this hideous fuck-up. Again, I'm saying that Fox will probably win any tried case on this. But the damages will be fractional compared to what they would've been had aggressively enforced their rights from the start. THAT part, at least, is a judgment call at trial.
OK, I haven't been following the Watchment case very closely, so I don't know all of the minute details. But from the little I've seen, it seems to me that Warner ought to be able to validly invoke the legal defense of laches to all of Fox's claims. To those unfamiliar with this legal term, laches is a defense that arises when a plaintiff stands by and waits an unreasonable amount of time to act on a rightful claim they may have, thereby causing unnecessary damages to the defendant.
So, for example, suppose you own some land and want to erect a building near the edge of your property line. However, it turns out that you are mistaken about exactly where that property line ends, and you end up inadvertently constructing the building on what is actually your neighbor's property. Now, further suppose the neighbor was aware that all of this was taking place, never protested the construction while it was underway, and then suddenly demanded that you tear the building down just when it was near completion. Under the doctrine of laches, a court could tell your neighbor to go to hell for their reckless, almost malicious tardiness and award little more than nominal damages for the invasion of their property.
Again, I am unfamiliar with all of the specific details of the Watchmen agreements. But if Fox knew that production was underway on a property it owned, yet never tried to stop it until it became clear that Warner had a big fat hit on its hands, then it seems to me a court should rightfully tell Fox to eat shit and award Fox no more than it had paid for the rights
Posted by ROTC at January 9, 2009 12:34 AM
comment #32
ROTC says ...
Wow, Ponderer posted almost exactly the same thing as I did just as I was writing my entry!
Ponderer: "True, but real-world circumstances are taken into account. If you someone builds a skyscraper on a landowner's property without objection, and then the landlord sues after completion - even if it IS the landowner's property - the landowner usually doesn't get to keep the skyscraper. :)"
Perhaps, but the owner of the skyscraper still has to pay rent.
"You go out, you protect your rights as early as possible. You don't wait for the other party to tell you what your rights are."
This was a title long stuck in development hell. Who'd have thunk that WB would actually finish it?
"But the damages will be fractional compared to what they would've been had aggressively enforced their rights from the start. "
Doubt it. If it was just WB shooting and distributing this production without permission, they could argue that they misread some legalese on the contract. But since they had a middle-man in the form of the producer involved, both of them will be held responsible as conspirators.
ROTC: "However, it turns out that you are mistaken about exactly where that property line ends, and you end up inadvertently constructing the building on what is actually your neighbor's property."
In this case, it's akin to constructing a building based on blueprints from a planner who was entitled to a finder's fee for the location.
Believe me, if WB's attorneys thought laches applied, I can guarantee you they raised it. In fact, without ever seeing the lawsuit, I am fairly certain they did. But it's very difficult to apply laches in the case of a written contract.
Fox's attorneys knew exactly what they were doing. Sometimes the trick in a case like this is to strike while you have the maximum leverage, without waiting too long and sitting on your rights. Had Fox filed this suit on the eve of Watchmen's release, the court might well have let that release go forward, for many of the reasons you guys state.
However, Fox filed the suit with enough time left that the case could be heard a couple months before release and before WB had spent too much on publicity. You'll notice that one of WB's arguments for moving up the hearing is that they're waiting to gear up the ad campaigns. The only ones really "damaged" at this point are the crazed fanboys that the producer is appealing to in the letter.
In the end, I'm fairly certain Watchmen will be released, with perhaps only a slight delay. But WB will likely have to fork over some cash. And maybe WB will drop any objections it might have to Fox releasing the long-delayed Batman TV series on DVD. I notice no one is accusing WB of being petty about that.
"We appreciate Mr. Levin’s passion for this project, but he has neglected basic facts and legal rulings. First, Fox notified Warner Bros of our rights in this project months before production on the film began -- they chose to ignore our rights on this occasion and several times after that and proceeded at their own risk; 2) only after having our rights in the film deliberately ignored by Warner Bros. did we take the action of filing litigation in order to have those rights recognized; and 3) on Judge Feess’ Christmas Eve order, he specifically ruled that WB had been timely notified and that Fox, in fact, had the rights we asserted. There is no question of who is right and who is wrong. That has been decided through the litigation that we had hoped to avoid, and we refer interested parties to the court’s ruling to confirm these statements."
Well - if the statement is to believed, and I'm no judge of that - it looks like Fox also recognized the importance of the timely notification, considering how many times they mentioned it in this brief statement. If WB did indeed ignore notifications before production started, then WB's gonna have to bend over and cough up hard.
comment #1
actionman
says ...
Wow. Levin very succintly laid it all out right there. More of a reason to hate on Fox and the morons who do business over there.
Posted by actionman
at January 8, 2009 2:16 PM
comment #2
Renfield
says ...
That's a GREAT letter.
Posted by Renfield
at January 8, 2009 2:21 PM
comment #3
Rich S.
says ...
That letter is all well and good, but it really boils down to just one sentence:
"Judge Feess is faced with an extremely complex legal case, with a contradictory contractual history, making it difficult to ascertain what is legally right."
The gist of the letter is that he wants the judge to overlook " the minutiae of decades-old contractual semantics" to get to what is "morally right." In other words, Fox has a legitimate contractual claim.
When you start talking in those terms, it generally means you've lost. Warner's probably needs to pony up.
Posted by Rich S.
at January 8, 2009 2:39 PM
comment #4
Ponderer
says ...
"The gist of the letter is that he wants the judge to overlook " the minutiae of decades-old contractual semantics" to get to what is "morally right." In other words, Fox has a legitimate contractual claim."
Of course, when you start choosing the contractual letter of the law over what's morally right, you've completely lost the meaning of a system of *justice* and should invite yourself to the nearest wood chipper.
I know that's a naive way of looking at things, and I think that Fox probably has a legally defensible claim, but somehow I'm still satisfied with with the view from my high horse.
Posted by Ponderer
at January 8, 2009 2:44 PM
comment #5
Rich S.
says ...
Well, Ponderer, I hope you remember that if you ever enter into a contract that comes into question. Hopefully, the judge won't decide that the other side is "morally right," even if the contractual language is in your favor.
This is show BUSINESS. I haven't seen the documents, but somewhere along the lines, someone apparently signed something for Fox that gives Fox rights under the law. This isn't Alan Moore and Dave Gibbons we're talking about. This is a couple of producers that wanted to use someone else's money to get their movie made. One of those someone else's apparently have a document that says they are entitled to a cut.
There's nothing moral about it.
Posted by Rich S.
at January 8, 2009 2:51 PM
comment #6
Circumvrent
says ...
The big news here is that McWeeny seems to have left AICN and started up his own site. When did that happen, and where was I?
Posted by Circumvrent
at January 8, 2009 2:58 PM
comment #7
Ponderer
says ...
"Well, Ponderer, I hope you remember that if you ever enter into a contract that comes into question. Hopefully, the judge won't decide that the other side is "morally right," even if the contractual language is in your favor."
If the judge has any sense, he'll certainly know that I'm ALWAYS morally right. :)
Posted by Ponderer
at January 8, 2009 3:02 PM
comment #8
DarthCorleone
says ...
I've got an idea: let's chop the film in half (not the potential grosses - the film itself) and give one portion to Warner Brothers and one portion to Fox. Make them messy halves too: every other minute of the film or something like that. Whichever one relents truly loves Watchmen and gets the whole baby.
Posted by DarthCorleone
at January 8, 2009 3:13 PM
comment #9
Josh Massey
says ...
I've always thought abiding by a signed contract is the moral thing to do...
Posted by Josh Massey
at January 8, 2009 3:38 PM
comment #10
alynch
says ...
"Let's ignore who is in the legal right" is not an argument worth considering.
Posted by alynch
at January 8, 2009 3:42 PM
comment #11
Balerion
says ...
Circumvent,
McWeeny announced it at AICN in his BENJAMIN BUTTON review in November. I'm not sure he started up that particular site, or just works for them.
Posted by Balerion
at January 8, 2009 3:48 PM
comment #12
Ponderer
says ...
"I've always thought abiding by a signed contract is the moral thing to do..."
Wow, no exceptions, no gray areas, not even a smidgen of balancing for the public good?
(I am NOT implying that there is a public good argument for the Watchmen release. All I'm curious about is if this is such a legal slam-dunk, why didn't Fox stop this at the first opportunity? It's bullshit that their legal eagles didn't scrutinize this from day one. It's like the Xerox case - if you don't defend your rights at the earliest possible moment, you've tacitly consented to give up your right to a property. Which is why every restaurant with Oscar in its name gets the shit sued out of it by the Academy.
I have no idea if this holds any kind of water, and I'm sure I'll be corrected, but I am curious if this sort of argument could be applied.)
Posted by Ponderer
at January 8, 2009 4:47 PM
comment #13
Edward Havens
says ...
I have a bad feeling this is going to be quickly become a textbook case of how not to handle yourself when you are in the middle of a legal proceeding.
Posted by Edward Havens
at January 8, 2009 5:01 PM
comment #14
CitizenKanedforChewingGum
says ...
That's funny, I was thinking the same thing, Ed.
I understand this was probably written at least in part to mobilize fan(boy) support for the film (and its release), and rally the troops against Fox, but this is questionable behavior when the legal outcome is still very much up in the air.
It's not going to be a make-or-break thing, but if a judge is on the fence about his decision, I certainly doubt the presence of this online "letter" is going to help matters.
Posted by CitizenKanedforChewingGum
at January 8, 2009 5:08 PM
comment #15
alynch
says ...
"Your honor, let's just put legalities aside for a moment ... What's that? You're ready to rule?"
Posted by alynch
at January 8, 2009 5:09 PM
comment #16
Josh Massey
says ...
"Wow, no exceptions, no gray areas, not even a smidgen of balancing for the public good?"
Contracts are written to eliminate exceptions and gray areas. As for "public good," you're getting into subjective terms that contracts are designed to explicitly avoid.
I certainly haven't read the contract, but apparently Fox has a legal right to the "Watchmen" property. To expect them to ignore that just so fanboys can get their movie is asinine. They have an obligation to their stockholders to claim what legally belongs to them - and to claim it at the highest price, which is why they haven't acted until now. It's business.
Posted by Josh Massey
at January 8, 2009 5:13 PM
comment #17
Ponderer
says ...
"I certainly haven't read the contract, but apparently Fox has a legal right to the "Watchmen" property."
Well, like I ventured above, do they? (Talking hypothetically, of course - I know there's already been one ruling.) Like I said, the Xerox case showed that if you don't defend your rights in a timely manner, you can find your rights forfeited. Is filing a case AFTER a movie has been filmed timely? I don't know, I'm asking.
Posted by Ponderer
at January 8, 2009 6:46 PM
comment #18
dukedog
says ...
I haven't seen either the Quitclaim or the Turnaround, but it will come down to the language and not because a studio took a chance. Which is unfortunate because I am really wanting to see this!
Well put letter though.
Fox should really settle this, take their cash and call it a day. Stopping a movie from being released is just a dick move.
Posted by dukedog
at January 8, 2009 6:50 PM
comment #19
D.Z.
says ...
"There's a list of people who have rejected the viability of a movie based on Alan Moore and Dave Gibbon's classic graphic novel that reads like a who's who of Hollywood."
Alan Moore's on that list, too, but his opinions don't matter, since you just want to cash in on another bad adaptation.
"After all these years of rejection, this is the same project, the same movie, over which two studios are now spending millions of dollars contesting ownership."
That's because the technology has changed to the point that it doesn't cost the equivalent of Titanic to make Watchmen happen, not because the studios suddenly think this is a viable property.
"Conversely, Warner Brothers called us after having read the script and said they were interested in the movie - yes, they were unsure of the screenplay, and had many questions, but wanted to set a meeting to discuss the project, which they promptly did. Did anyone at Fox ask to meet on the movie? No. Did anyone at Fox express any interest in the movie? No. Express even the slightest interest in the movie? Or the graphic novel? No."
You fail to mention that WB didn't pick up the project until Paramount got bored with it.
"the movie would not only be R rated but a hard R - for graphic violence and explicit sex -"
That probably means it sucks already, since the book is not that violent or sexual.
"We also asked Warner Brothers to support an additional 1 to 1.5 hours of content incurring additional cost that would tie in with the movie but only be featured in DVD iterations of the film. Warners supported the whole package and I cannot begin to emphasize how ballsy and unprecedented a move this was on the part of a major Hollywood studio. Unheard of."
Please. It's no ballsier than the Animatrix and Gothic Knight.
"And would another studio in Hollywood, let alone a studio that didn't show one shred of interest in the movie, not one, have taken such a risk? Would they ever have made such a commitment, a commitment to a film that defied all conventional wisdom? Only the executives at Fox can answer that question. But if they were to be honest, their answer would have to be "No."'
Funny that you're insulting FOX, when they were the ones who gave Star Wars a chance, while WB screwed over THX.
"Shouldn't Warner Brothers be entitled to the spoils - if any -- of the risk they took in supporting and making Watchmen?"
If they don't think Alan Moore is entitled to the merchandise, no.
"Should Fox have any claim on something they could have had but chose to neither support nor show any interest in?"
If they have legal precedence, yes. Doesn't matter whether it's right or wrong; FOX took on the project first. If WB can blow a ton of money on Superman Returns, it can pay its dues to FOX.
"One reason the movie was made was because Warner Brothers spent the time, effort and money to engage with and develop the project. If Watchmen was at Fox the decision to make the movie would never have been made because there was no interest in moving forward with the project."
That's BS, and you know it. If that were the case, you wouldn't have gone studio-hopping for the last 20 years in the first place.
"Does a film studio have the right to stand in the way of an artistic endeavor and determine that it shouldn't exist?"
WB seemed to feel that way about the uncut Eyes Wide Shut...
"For the sake of the artists involved, for the hundreds of people, executives and filmmakers, actors and crew, who invested their time, their money, and dedicated a good portion of their lives in order to bring this extraordinary project to life, the question of what is right is clear and unambiguous - Fox should stand down with its claim."
Shouldn't you be standing down on adapting a book Alan Moore didn't want to see made into a movie?
Ponderer: "Of course, when you start choosing the contractual letter of the law over what's morally right, you've completely lost the meaning of a system of *justice* and should invite yourself to the nearest wood chipper."
So FOX not getting compensated for its own investment in the project is morally right?
"All I'm curious about is if this is such a legal slam-dunk, why didn't Fox stop this at the first opportunity?"
I'm guessing because they were hoping WB would wise up and pay them eventually.
"if you don't defend your rights at the earliest possible moment, you've tacitly consented to give up your right to a property."
Maybe in Zimbabwe, but we do things differently here.
Darth: Heh.
Posted by D.Z.
at January 8, 2009 7:24 PM
comment #20
D.Z.
says ...
"That probably means it sucks already, since the book is not that violent or sexual."
I wanted to add that a lot of the violence in Watchmen is implied.
Posted by D.Z.
at January 8, 2009 7:26 PM
comment #21
corey3rd
says ...
Gordo did what would get you flunked out of a film school's producer program.
The idea of cutting it in half and giving each studio a side to distribute could have worked - they could have had the film running at 5 hours when put together. Flip a coin to see which studio gets Part 1 or 2.
Posted by corey3rd
at January 8, 2009 7:38 PM
comment #22
Josh Massey
says ...
Holy shit, DZ. That is easily your most cogent post ever.
Posted by Josh Massey
at January 8, 2009 7:48 PM
comment #23
Ponderer
says ...
"Maybe in Zimbabwe, but we do things differently here."
WTF? The game is about damages. A suit in this case means that Warner Bros. has damaged Fox's property in some way. If Fox knew from the beginning that they had the legal rights and still let Warner Bros. make the movie, then they ALLOWED the damages to happen. They didn't even issue any kind of claim, statement, or warning. And like the famous Xerox case, they stand a real chance of losing in court because of their failure to act promptly.
Posted by Ponderer
at January 8, 2009 8:57 PM
comment #24
D.Z.
says ...
Ponderer: As I said before, FOX waited, because it probably expected WB to pony up its end of the deal eventually. When that wasn't the case, it acted. Anyway, I just read about the Xerox case, and it's not the same thing, as Xerox had a patent on its product, while WB does not have distribution and ownership rights for Watchmen.
Posted by D.Z.
at January 8, 2009 9:26 PM
comment #25
Ponderer
says ...
"As I said before, FOX waited, because it probably expected WB to pony up its end of the deal eventually. "
Uh...how exactly do you envision that ever happening? I don't mean that snidely, I'm just looking for an instance where that has ever happened. If WB believed it had the rights squared away - and the fleet of corporate lawyers would have cleared that at risk of gross malpractice - then there would be no reason for them to contact Fox at all. If Fox believed it had a claim, it was incumbent of them to notify WB before damages could accrue.
Or to put it another way, you stop the dude from burning down your house if you know they're doing it - you don't watch it burn down and then sue.
"Xerox had a patent on its product, while WB does not have distribution and ownership rights for Watchmen. "
Xerox = Fox, not WB.
Posted by Ponderer
at January 8, 2009 9:34 PM
comment #26
DarthCorleone
says ...
D.Z. >> I dug your Eyes Wide Shut analogy. :- )
Posted by DarthCorleone
at January 8, 2009 9:56 PM
comment #27
D.Z.
says ...
Ponderer: "If WB believed it had the rights squared away - and the fleet of corporate lawyers would have cleared that at risk of gross malpractice - then there would be no reason for them to contact Fox at all. If Fox believed it had a claim, it was incumbent of them to notify WB before damages could accrue."
Ok, let's look at this another way. Let's assume that WB did know it had to pay FOX. Why did WB choose to wait to act, knowing it would mean legal action against it?
"Or to put it another way, you stop the dude from burning down your house if you know they're doing it - you don't watch it burn down and then sue."
But if you're just leasing the house, then it's up to the other person to make their payments on time.
"Xerox = Fox, not WB."
Xerox also won, so what's your point?
Posted by D.Z.
at January 8, 2009 10:28 PM
comment #28
Ponderer
says ...
"Let's assume that WB did know it had to pay FOX. Why did WB choose to wait to act, knowing it would mean legal action against it?"
Fair enough question. If WB knew for sure that the rights were not clear, then they will lose the case - but Fox will not get the damages it would have if they had protected their rights.. If WB sincerely believed the rights questions had been resolved, then Fox's case is no more than 50/50 because they didn't pursue it. Generally speaking, as I understand it, the onus is on the rights-holder to claim damages.
"Xerox also won, so what's your point? "
Yes, Xerox won after a long, long fight - and they still have to maintain an aggressive stance so the trademark doesn't become genericized. IOW, it's exactly as I said - if you don't aggressively protect your rights, you lose them. Some of the names that HAVE lost legal protection include cellophane, escalator, thermos and even Webster's Dictionary. If you don't aggressively protect yourself, you're simply not on safe legal ground.
Posted by Ponderer
at January 8, 2009 10:56 PM
comment #29
D.Z.
says ...
Ponderer: "but Fox will not get the damages it would have if they had protected their rights.."
Rights are rights. The contract did not limit when FOX could take legal action, or it would have sued sooner.
"Yes, Xerox won after a long, long fight - and they still have to maintain an aggressive stance so the trademark doesn't become genericized. IOW, it's exactly as I said - if you don't aggressively protect your rights, you lose them."
The same can be said for the producer.
Posted by D.Z.
at January 9, 2009 12:02 AM
comment #30
Ponderer
says ...
"The contract did not limit when FOX could take legal action, or it would have sued sooner."
True, but real-world circumstances are taken into account. If you someone builds a skyscraper on a landowner's property without objection, and then the landlord sues after completion - even if it IS the landowner's property - the landowner usually doesn't get to keep the skyscraper. :)
The question will be asked, "Why did your legal department not notify WB that the rights were in dispute?"
It just boggles the mind that the Fox legal dept would not do any kind of due diligence like that. You go out, you protect your rights as early as possible. You don't wait for the other party to tell you what your rights are.
"The same can be said for the producer."
I don't disagree, and that's why there's this hideous fuck-up. Again, I'm saying that Fox will probably win any tried case on this. But the damages will be fractional compared to what they would've been had aggressively enforced their rights from the start. THAT part, at least, is a judgment call at trial.
Posted by Ponderer
at January 9, 2009 12:26 AM
comment #31
ROTC
says ...
OK, I haven't been following the Watchment case very closely, so I don't know all of the minute details. But from the little I've seen, it seems to me that Warner ought to be able to validly invoke the legal defense of laches to all of Fox's claims. To those unfamiliar with this legal term, laches is a defense that arises when a plaintiff stands by and waits an unreasonable amount of time to act on a rightful claim they may have, thereby causing unnecessary damages to the defendant.
So, for example, suppose you own some land and want to erect a building near the edge of your property line. However, it turns out that you are mistaken about exactly where that property line ends, and you end up inadvertently constructing the building on what is actually your neighbor's property. Now, further suppose the neighbor was aware that all of this was taking place, never protested the construction while it was underway, and then suddenly demanded that you tear the building down just when it was near completion. Under the doctrine of laches, a court could tell your neighbor to go to hell for their reckless, almost malicious tardiness and award little more than nominal damages for the invasion of their property.
Again, I am unfamiliar with all of the specific details of the Watchmen agreements. But if Fox knew that production was underway on a property it owned, yet never tried to stop it until it became clear that Warner had a big fat hit on its hands, then it seems to me a court should rightfully tell Fox to eat shit and award Fox no more than it had paid for the rights
Posted by ROTC
at January 9, 2009 12:34 AM
comment #32
ROTC
says ...
Wow, Ponderer posted almost exactly the same thing as I did just as I was writing my entry!
Posted by ROTC
at January 9, 2009 12:36 AM
comment #33
theultimatebiu
says ...
The argument seems to come from FOX owning distribution rights still not production rights. So I don' t think that would be valid.
Posted by theultimatebiu
at January 9, 2009 1:10 AM
comment #34
D.Z.
says ...
Ponderer: "True, but real-world circumstances are taken into account. If you someone builds a skyscraper on a landowner's property without objection, and then the landlord sues after completion - even if it IS the landowner's property - the landowner usually doesn't get to keep the skyscraper. :)"
Perhaps, but the owner of the skyscraper still has to pay rent.
"You go out, you protect your rights as early as possible. You don't wait for the other party to tell you what your rights are."
This was a title long stuck in development hell. Who'd have thunk that WB would actually finish it?
"But the damages will be fractional compared to what they would've been had aggressively enforced their rights from the start. "
Doubt it. If it was just WB shooting and distributing this production without permission, they could argue that they misread some legalese on the contract. But since they had a middle-man in the form of the producer involved, both of them will be held responsible as conspirators.
ROTC: "However, it turns out that you are mistaken about exactly where that property line ends, and you end up inadvertently constructing the building on what is actually your neighbor's property."
In this case, it's akin to constructing a building based on blueprints from a planner who was entitled to a finder's fee for the location.
Posted by D.Z.
at January 9, 2009 1:45 AM
comment #35
EDouglasCS
says ...
That's interesting and all, but you failed to mention the "collusive oligopoly"...
Posted by EDouglasCS
at January 9, 2009 6:13 AM
comment #36
Rich S.
says ...
Believe me, if WB's attorneys thought laches applied, I can guarantee you they raised it. In fact, without ever seeing the lawsuit, I am fairly certain they did. But it's very difficult to apply laches in the case of a written contract.
Fox's attorneys knew exactly what they were doing. Sometimes the trick in a case like this is to strike while you have the maximum leverage, without waiting too long and sitting on your rights. Had Fox filed this suit on the eve of Watchmen's release, the court might well have let that release go forward, for many of the reasons you guys state.
However, Fox filed the suit with enough time left that the case could be heard a couple months before release and before WB had spent too much on publicity. You'll notice that one of WB's arguments for moving up the hearing is that they're waiting to gear up the ad campaigns. The only ones really "damaged" at this point are the crazed fanboys that the producer is appealing to in the letter.
In the end, I'm fairly certain Watchmen will be released, with perhaps only a slight delay. But WB will likely have to fork over some cash. And maybe WB will drop any objections it might have to Fox releasing the long-delayed Batman TV series on DVD. I notice no one is accusing WB of being petty about that.
Posted by Rich S.
at January 9, 2009 6:35 AM
comment #37
D.Z.
says ...
Rich: Hell, I'm still waiting for WB to release Drunken Master 2 and Pedicab Driver on dvd.
Posted by D.Z.
at January 9, 2009 2:05 PM
comment #38
D.Z.
says ...
Also, from http://www.deadlinehollywooddaily.com/watchmen-watch-another-court-decision-today-and-shut-up-larry/ via AICN:
"We appreciate Mr. Levin’s passion for this project, but he has neglected basic facts and legal rulings. First, Fox notified Warner Bros of our rights in this project months before production on the film began -- they chose to ignore our rights on this occasion and several times after that and proceeded at their own risk; 2) only after having our rights in the film deliberately ignored by Warner Bros. did we take the action of filing litigation in order to have those rights recognized; and 3) on Judge Feess’ Christmas Eve order, he specifically ruled that WB had been timely notified and that Fox, in fact, had the rights we asserted. There is no question of who is right and who is wrong. That has been decided through the litigation that we had hoped to avoid, and we refer interested parties to the court’s ruling to confirm these statements."
Posted by D.Z.
at January 9, 2009 2:31 PM
comment #39
Ponderer
says ...
Well - if the statement is to believed, and I'm no judge of that - it looks like Fox also recognized the importance of the timely notification, considering how many times they mentioned it in this brief statement. If WB did indeed ignore notifications before production started, then WB's gonna have to bend over and cough up hard.
Posted by Ponderer
at January 9, 2009 3:20 PM