20th Century Fox v. small screenwriter. Suing for copyright infringement appears to be cheaper than advertising.

Being an attorney who grew up in NY and who has roots in The Big Apple, the Twentieth Century Fox Film Corporation v. Patricia McIlvaine case filed in the United States District Court for the Eastern District of New York (Case 2:10-cv-05358-LDW-AKT) is one which I can share a modest opinion.

The facts of the case are pretty simple, and details can be found on a number of sites, including the Moviefone blog, TorrentFreak, or a number of other news sites all parroting the same “talking points.”  In short, the defendant posted a number of movie scripts onto a web site that she created (for the benefit of other screenwriters), likely not realizing that her actions would constitute and enforceable act violating federal copyright laws.

Without 20th Century Fox telling McIlvaine to take down her infringing materials or serving her with some sort of cease and desist letter (they actually have no requirement to do this, although it is a polite thing to do which likely would have inspired compliance), they instead decided to gain some publicity by suing McIlvaine for $12 Million in copyright violations.

Now since hearing about this case from Brian Baker, a commercial real estate attorney in Dallas, TX [who consequently also blogs via wordpress — his blog is http://leaselaw.wordpress.com] and providing me a copy of the initial complaint, I read it carefully and went onto the US District Court for the Eastern District of New York’s PACER site to download a copy of other documents filed in the case.  However, contrary to what you hear in the fire of the news stories, things in this case appear to be going slowly, and filings appear to still be only in the initial stages — the NY attorneys for 20th Century Fox are still submitting documents proving that they own the copyrights for the 100+ movies they are accusing McIlvaine of infringing — and to me it appears as if the case is more for show rather than to punish McIlvaine violating their copyrights.

You might ask, “isn’t $15 million punishment enough?” to which I opine that I don’t think she’ll ever get the full $15 million judgment.  If anything, I think she’ll find some attorney to fight the case on her behalf, and the attorney will establish that she didn’t know what she was doing was copyright infringement, and that even if she did, 20th Century Fox (“Fox”) was not damaged by her actions.  I wouldn’t be surprised if she got off for even a few hundred dollars and a slap on the wrist, however you would NEVER hear about it on the news.  That is why it is important to read the case dockets and the pleadings yourselves because they are the most telling of what actually happened in the case without the bias that too frequently skews the actual results of cases such as these.

It’s interesting to note that this was not the first time the script for Deadpool was leaked onto the internet, and I wouldn’t be surprised if Fox’s “shoot, then ask” approach was because they worked so hard to have the first leak contained and removed from the web, and here she goes re-posting it again.  I am sure that made Fox’s legal team quite annoyed, enough so that they [poorly and quickly, in my opinion] draft a complaint and send a few goons to her house to scare her and make her cry.  It’s also interesting to note that McIlvaine is not the source of the leak; Fox does not yet know who these people are, but they have identified them as Defendant Does 1-10 who will be named as discovery reveals who they are.

[As a side note, to all you readers who get all huffy when a plaintiff sues Defendant Does 1 – 10 (or 100, or 5000), this is a perfect example of showing how the practice of naming Does is a perfectly legal and valid practice.  They simply don’t know who they are yet.  Similarly, I have seen many postings about how people recoil at the fact that an attorney (our Cashman Law Firm, PLLC) has uploaded and shared public and legal information through the use of a torrent on a pirate web site.  The use of peer-to-peer was meant for such a purpose, and just as Linux software providers legally share their operating system installation files via torrent (e.g., Ubuntu, etc.), so too can we.]

In short, after reading the complaint, I shrugged my shoulders and thought to myself that there is nothing really so exciting here.  20th Century Fox is trying to make an example of defendant McIlvaine, a woman who “sells flowers to make ends meet” and spends her free time “caring for an elderly relative suffering from dementia, and caring for an infant.”  This is someone who cannot even afford an attorney.

My opinion is that even if they win the full $15 million they are claiming she should pay, do they really think they will ever see a penny from her?  As far as I’m concerned — and I do not know her true financial situation, but I can only posit based on what has been written — she appears to be JUDGMENT PROOF.  She has nothing to lose.  [Even if she was not judgment proof, the bankruptcy laws of New York are such that it would merely require a filing to make such a judgement go away in heartbeat via a Chapter 7 bankruptcy (or less likely, via a Chapter 13), where 20th Century Fox as the supposed judgement holder would get $ZERO.]

All this being said, nobody wants such a lawsuit on their shoulders.  This must be a scary and unnerving proposition for her to figure out how to deal with.  She will likely need to hire an attorney, perhaps one to take the case pro bono, and she will need to defend her case.

If she is smart, she will use this lawsuit to gain notoriety within the Writers Guild of America and other networks of screenwriters so that she can further her career goals and dreams and make them a reality.  However, I doubt she will be writing for 20th Century Fox anytime soon.

21 thoughts on “20th Century Fox v. small screenwriter. Suing for copyright infringement appears to be cheaper than advertising.”

  1. Not so fast there, Tex. Debts incurred for causing willful and malicious injuries are not dischargeable in bankruptcy. You are probably right – in the final analysis she will probably be able to wipe the slate clean – but 20th Cent FOX can still allege…

    (Not a lawyer here) but I wouldn’t want to defend the notion that she posted these for education. 20 Cent FOX will surely contend she posted them “to gain notoriety within…networks of screenwriters so that she can further her career goals…”

    She’s been posting links to every news article she can find on Facebook. Doesn’t that confound her “education” defense? Doesn’t that seem unwise to you?

    1. I’ll ignore the Tex comment and will address your argument. The last I checked, you are correct that willful and malicious injuries are not dischargeable in bankruptcy. Since you have used this wording, I suspect you have anticipated my response, namely that I believe you are referring to the old Supreme Court case of Tinker v. Colwell, 193 U.S. 473 (1904) which addressed this issue. Since then, the law has been modified in Kawaauhau v. Geiger, 118 S. Ct. 974 (1998) to limit willful and malicious injuries to mean intentional torts, e.g., a doctor prescribing the wrong medication causing the patient’s infection to spread and ultimately to have the foot amputated. Since then and the updated bankruptcy laws, there has been some discussion on the topic. Obviously one doing research on this topic should consult an attorney before proceeding (and if I were her attorney I would take the time to confirm this, if it ever came to filing bankruptcy), but based on these cases, copyright infringement does not fall under the willful and malicious injury standard. I’d be happy to look into this for you at some later date if you have a particular issue or client in mind.

      As for your other question about her approach to posting responses to news articles, I cannot comment. She is not my client and ultimately her attorney (appointed, pro bono, or paid) would have to advise her as to these issues. She is in a tough position.

      Since this is more of a bankruptcy topic, I’ll post a copy of this response on our firm’s bankruptcy blog.

  2. I’m sure you’re right… and sorry if “Tex” offended. Didn’t “intend” it…

    I think you’re telling me that someone can intend to perform an act (like uploading a script) without intent to inflict damage on ther copyright holder. Hope you’re right. I’m just a worry wart.

  3. McIlvaine is a writer. She’s worked in the industry for years and she knew clearly that what she was doing was in violation of copyright laws.

    1. No doubt, that is why I think she’s in trouble. She will likely assert the public use defense, namely that she pulled the information from other websites and that she was not the source of the leak (“don’t shoot the messenger,” sound familiar?), but in my understanding the “they did it too” defense will likely not hold up in court. I’d also laugh if I saw a first amendment defense because I’ve never seen that hold up in a copyright infringement lawsuit.

  4. Dgirl, LilBird25,

    For years and years screenplays were posted to the internet and the studios did not seek to remove them. Early on in life of the Net, those screenplays were in text files. Then came PDF format and script trading flourished. In fact, some studios now release yearly a set of ‘FYC’ (For Your Consideration) screenplay copies in PDF form, for anyone to download direct from the studio’s website in many cases! e.g.

    http://www.universalpicturesawards.com/screenplays07/

    So McIlvaine’s crime is not that she compiled a library of screenplay files — technically, yes, it’s copyright infringement because there’s no explicit license to copy and publish the IP. But in practice, no, because for years the studios allowed screenplay stores and screenplay trading to happen and even flourish. A screenplay has little value in itself once the movie finishes its release run. The remaining value is in keeping alive interest in the IP and as a teaching tool for new screenwriters.

    Where McIlvaine overstepped the line is by making available to the public at large scripts still in development — the Deadpool script being in very early development. That was always the line in the sand a script collector should not cross: i.e. never make in-development scripts available wholesale to the public. These in-development scripts become quickly available and circulate within the closed, small screenplay-trading circles on the Net, who know not to let them leak outside of their tight-knit communities. Those private trading circles understand the damage that can result from leaking in-development scripts to the public.

    That’s what McIlvaine did: she violated that unwritten law of script trading and Fox is punishing her for it as a warning to others.

  5. Ted, the issue is far more complex–and boringly simple–than what you suggest. If McIlvaine had been the original leaker of the unproduced script in question–but she wasn’t. And Fox knows this. Besides, her script library was never made available to the public in the manner the lawsuit would have you think. There is a lot more to this than meets the eye.

  6. As a non-lawyer, the facts of the case seem simple but the law seems complex.

    Copyright law creates a legally sanctioned monopoly, balanced by limitations and exceptions that allow others some access without the permission of the copyright holder. In the US, authors have “fair use” of copyrighted material. We can probably quote 100 or so words directly, much beyond that we ought to paraphrase, and in either case we ought to provide a citation.

    “Someone else stole it first” doesn’t sound like a good defense to me.

    Ms. McIlvaine might have a viable defense in claiming that her usage was for education. But she doesn’t run a school. If she collects fees or tuition, that looks to me like a strike against her.

    Moreover, the notion that students can learn much from a script that is still in development seems like a stretch to me.

    Maybe I’m wrong. I wish her the best and hope she wiggles out of this mess.

  7. LilBird25 — I agree it’s nuanced. But there’s no doubt in my mind that Fox would not have pounced if McIlvaine had handled only scripts from post-release films.

    Whether her script repository was public but not widely known is immaterial. Fox’s lawyers could freely access the repository and that’s all they need to show. If I recall correctly, McIlvaine even had her respository MediaFire URL as part of her posting signature on the DoneDealPro forums. Heck, the script library was so well known on the DoneDealPro forum that it had a nickname: “The Beast.”

    As I said earlier, the studios don’t care about old screenplays. They have little interest in zealously protecting that old, used IP. What they want to do is protect the investment dollars they’re pumping into new IP/films. Bad word of mouth or leaked spoilers can stumble a project right out of the gate. Sometimes it can kill a project stone dead. Look what happened with Stephanie Meyer when her early manuscript for Midnight Sun leaked to the Net (http://www.stepheniemeyer.com/midnightsun.html). It can be just as devastating to a film in development.

    There must be a curtain between the public and the in-development entertainment product to prevent dilution of the experience, be it books, music, film, whatever. Marketing gives brief glimpses behind the curtain, to build anticipation and build an audience, but only when the product is final and ready does that curtain part and the public gets to see the product as the producer intended. If the public were privy to every step of the development process, that entertainment experience is going to have lost much of its magic by the time the curtain opens. As an entertainment consumer, why would you want to have a diluted experience?

    There’s just no way McIlvaine can defend herself from Fox’s claims. She can plead laches etc. for the old stuff and perhaps soften the blow there, but Fox cannot lose on the matter of the in-development IP infringement. Studios always fought hard to protect their in-development IP/scripts so no estoppel/laches to the rescue there. No fair use, no nothing. Just an adverse judgment and then the real work of deciding appropriate damages — and hopefully Fox will allow those damages to be mostly nominal. They already achieved their goal of shocking the script-trading community into playing by the unwritten rules. Let’s hope they consider that result more valuable than completing their sturm-und-drang against McIlvaine.

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