Having failed the first time, best-selling author Tess Gerritsen has lodged an amended complaint against Warner Bros. for allegedly breaching the terms of a 1999 deal by failing to pay her back-end profits on Gravity.
On Jan. 30, a California judge dismissed the first complaint, but not because Gerritsen had failed to show how the Alfonso Cuaron blockbuster had derived from her book. The judge never reached that issue. Instead, the lawsuit was grounded because Gerritsen’s deal was with a company called Katja, not Warner Bros.
At the time of her deal, Katja was owned by New Line Productions, later acquired by Warner Bros., but the fact that this now makes Katja a subsidiary of Warner Bros. doesn’t mean that the parent studio picked up contractual obligations towards Gerritsen.
After the decision, the author bemoaned this situation, writing on her website, “This is why every writer who sells to Hollywood should be alarmed.”
What Gerritsen omitted from her rant is that the law provides opportunities for her to show Warner Bros. owes her. She could demonstrate Warner Bros. is the “successor-in-interest” to Katja’s obligations or she could show that Warner Bros. is an “alter ego” of Katja. In fact, she and her attorney Glen Kulik tried to assert these theories on the first go-around. There were just too many plot holes.
As U.S. District Judge Margaret Morrow wrote, “Gerritsen alleges no facts showing that New Line and Katja are ‘shell corporations,’ nor does she plead facts showing that WB directs New Line’s and Katja’s business activities… Similarly, Gerritsen does [not] detail how it is that WB exercises complete management, control, ownership and domination over New Line and Katja. Without a factual basis, her conclusory allegations are insufficient.”
Given this, it’s not a surprise to see Gerritsen’s amended complaint focus heavily on the back-story of Time Warner corporate wheeling-and-dealings with some new characters and scenery added too.
The new complaint quotes executive memorandums like chief executive Jeff Bewkes saying that New Line would be “operated as a unit of Warner Bros. Entertainment.”
How the consolidation was relayed to those doing business with the company is recounted too.
In an effort to show Warner Bros. exercises management, control, ownership and domination over New Line and Katja, such details as shared office space, shared executives, the registry of business info, where telephone calls are directed, and more are all mentioned. “Since the consolidation, if one tries to access a website for New Line or Katja, one is automatically directed to the WB website,” states the amended lawsuit.
The amended lawsuit also says that Warner Bros. decides which movies New Line produces, that Warners’ logo is stamped on New Line films, and that box office reports don’t differentiate between the two.
Gerritsen doesn’t allege anywhere that Warner Bros. became a party to her agreement with Katja through any specific assignment of that 1999 deal. The closest to this is word that “by virtue of a written agreement dated January 1, 2010, all intellectual property acquired by New Line at any time (in perpetuity) is deemed to be automatically transferred to and owned by WB.”
She sums up by claiming that Warner Bros. has “abused the corporate structure of New Line and Katja to advance WB’s own interests and in an attempt to avoid liabilities to third parties, which is intended to leave third parties without a remedy and is unconscionable.”
Warner Bros. had no comment about the new filing. It’s likely that the studio will again object to the sufficiency of her theory of liability. If the case gets past this hurdle, it will begin exploring whether the film is really based on Gerritsen’s book, including additional written material submitted said to feature “a female medical doctor/astronaut left drifting in her space suit, alone and untethered, seeking the means to return to earth.”
The defendant has previously cited a failing here too. An earlier motion to dismiss stated, “There are no aliens, government conspiracy theories, gory medical scenes, or tales of lovers reconciling in Gravity the Movie.”