United States: The Gloves Are Off: Competing Biopics Battle For Hollywood Purse

Hollywood's heavy-hitters often enter the ring over unauthorized biographies. Elizabeth Taylor famously invoked her rights of publicity and privacy in an attempt to shut down an unofficial docudrama about her life; Clint Eastwood sued the author and publisher of his unsanctioned biography for libel; and a film production company brought claims for copyright and trademark infringement against the producers of the biopic Lovelace starring Amanda Seyfried. Hollywood's newest matchup involves misappropriation of trade secrets, a growing concern in the entertainment industry, especially after the recent Sony hack.

In one corner, we have Plaintiff Chuck "the Bayonne Bleeder" Wepner, a former professional heavyweight boxer famous for enduring 15 rounds against Muhammed Ali in 1975 and inspiring the Oscar-winning film Rocky. In 2004, Wepner entered into an exclusive partnership to produce a film about his life story with Tollin/Robbins Productions, LLC (co-Plaintiffs along with other production companies). The film, entitled The Bleeder and due to be released later this year, landed A-list talent including Liev Schreiber and Naomi Watts in leading roles.

In the other corner is Defendant Mary Aloe (as well as associated producers), a self-described film finance expert residing in Los Angeles. According to the Complaint, the details, script, budget and schedule of The Bleeder coalesced in 2013, and Aloe approached Tollin/Robbins about providing assistance in raising financing. In exchange for Aloe's commitment to raise $5 to 6.5 million for the film, Wepner and Tollin/Robbins promised Aloe 5% of the equity sourced and an executive producer credit. Most importantly, they entrusted Aloe with confidential and proprietary information about the project including the "script, budget, production schedule, sizzle reel, contracts with and information provided by Wepner and cast members, and other production materials" to prepare marketing presentations to potential investors. These disclosures were ostensibly conditioned on Aloe accepting an obligation neither to use this information for her private advantage nor to interfere with the project in any way, and "[n]otably, the parties agreed to abide by other terms as are standard for motion picture agreements of this type." The Complaint states that the parties entered into an oral agreement, "memorialized in part in writing."

Aloe supposedly deviated from the agreement, "incessantly pepper[ing] Plaintiffs with emails and phone calls – sometimes in excess of two dozen per day – with requests from purported investors to adjust the budget, interview the cast, and/or otherwise compromise the confidentiality and integrity of the project." Despite Aloe's extensive contact with "unknown third parties," she raised no funds and ultimately Tollin/Robbins procured funding elsewhere. With a blow that Plaintiffs assert was below the belt, Aloe then financed and produced her own unauthorized biopic entitled American Brawler, coined the "Stolen Wepner Film" in the Complaint; Aloe also allegedly attempted to undermine Tollin/Robbins with attempts to woo key personnel to her film including Wepner, Schreiber and the director/screenwriter.

In the Complaint filed February 22, 2016, in Los Angeles Superior Court, Plaintiffs bring claims for: breach of oral agreement; breach of the implied covenant of good faith and fair dealing; breach of fiduciary duty; intentional interference with contractual relations; intentional interference with prospective economic advantage; and misappropriation of trade secrets. Plaintiffs contend Aloe is making "a nearly identical film that fully exploits everything she obtained in confidence." "The script for the 'Stolen Wepner Film' includes numerous references to facts, instances, events or statements made by or about Wepner which have never been publically documented and were only known to Aloe through her access to Plaintiffs' script." Furthermore, Plaintiffs declare "[c]omparison between the two scripts, sizzle reels, and marketing materials makes it clear that Defendants used portions or all of Plaintiffs' script, budget, production schedule, sizzle reel, and other production materials to develop their own copycat film,  . . ." Finally, the Complaint alleges Aloe plans to beat Wepner to the punch and "apparently intend[s] to release [American Brawler] before the Authorized Wepner Film." Plaintiffs claim that promotional materials for American Brawler have already started to frustrate their attempts to publicize and distribute their film, and they must expend additional marketing funds and efforts to rectify market confusion. To avoid further damage to its ability to market, promote and distribute The Bleeder, Plaintiffs seek preliminary and permanent injunctive relief enjoining Defendants from further acts of misappropriation and halting production, promotion and/or distribution of the "copycat film." Plaintiffs also seek punitive damages and attorneys' fees.

Legal precedent makes clear that Wepner does not own his "life story rights." In reality, the term is a somewhat of a misnomer. Facts can't be owned, copyrighted or trademarked, and producers don't technically need Wepner's permission to make a movie about his life. Moreover, Wepner is a public figure and his story is potentially newsworthy; thus, his right to privacy is limited. However, Wepner's argument for misappropriation of trade secrets is a strong contender. Studios and production companies expend significant time and resources planning and keeping secret a film's release date, budget, distribution terms, casting, talent fees and marketing strategy; another studio could want to learn these details in order to gain competitive advantage. Plaintiffs assert Aloe knew the materials she was given were confidential and the other "Defendants knew or should've known that the material given to them by Aloe constituted Plaintiffs' confidential, proprietary, and trade secret information and was given to them in breach of Aloe's obligation to Plaintiffs."

However, Aloe isn't down for the count yet. A few key questions rise to the top of the heap and need to be answered in the next round:

  • Exactly what were the terms of the oral agreement and which of these terms were eventually memorialized in writing? Why are Plaintiffs limiting their breach of contract claim to breach of the oral agreement?
  • What did the parties intend when they agreed to "other terms as are standard for motion picture agreements of this type"?
  • Why wasn't there a comprehensive written non-disclosure and/or non-compete agreement between the parties?
  • Did the producers still take reasonable efforts to maintain the secrecy of their production materials if the plans were used to secure third party investors?
  • When Aloe left The Bleeder, what actions did Plaintiffs take to recover the proprietary information?
  • Beyond the film's storyline, can Plaintiffs prove the production materials overlap?
  • Were any of the allegedly misappropriated trade secrets actually used by Aloe to produce the competing film?

In claims for misappropriation of trade secrets, the court undertakes a fact-driven inquiry and the smallest detail could sway the judge. The answers to the above questions will help us weigh-in on who will win this prize fight.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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