Judge Orders ‘Last Samurai’ Idea Theft Case to Trial

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A federal judge has ordered a jury trial to proceed involving the Tom Cruise blockbuster, which reportedly earned more than $600 million in revenues. Director Ed Zwick and producer Marshall Herskovitz will defend against allegations of idea theft, brought by two writers who submitted them a screenplay also entitled “The Last Samurai”.

A federal judge has ordered that a long-running legal battle over the creation of the 2003 Tom Cruise blockbuster “The Last Samurai” proceed to trial (Benay v. Warner Bros., U.S. District Court, Central District of California, Case # 2:05-cv-08508-PSG-FMO). The case was brought in 2005 by plaintiffs Aaron Benay and Matthew Benay, brother screenwriters who wrote a script also entitled “The Last Samurai”.

According to a court order, U.S. District Court Judge Philip S. Gutierrez denied a motion for summary judgment that was filed by law firm Quinn Emanuel on behalf of filmmakers Ed Zwick and Marshall Herskovitz, and their production company Bedford Falls. Gutierrez's ruling characterized the defendants’ argument for a dismissal on statute of limitations as “an attempt to muddy the waters”.

The ruling released Warner Bros., the studio that distributed the film, and another writer, John Logan, as defendants in the case. But it denied Warner Bros.’ motion for terminating and monetary sanctions.

The plaintiff’s attorney, John Marder of Marder Zink & Karlzen LLP says, “We are gratified by the court’s denial of Zwick, Herskovitz, and Bedford Falls' motion for summary judgment. As for Warner Bros., we're researching our options for appeal. We want to make certain that all the responsible parties are held accountable.” There is much at stake in the case, as “The Last Samurai” reportedly grossed $456 million in box office, and sold $125 million in DVD’s in the first six months of sales alone.

In a 2005 complaint, the Benays claimed that in May 2000 they submitted their script for “The Last Samurai” to Zwick and Herskovitz, and to Warner Bros., through their literary agent. It centered on a fictional American Civil War veteran, who was recruited by the Emperor of Japan to train a newly formed Imperial Army in a fight against the rebelling samurai. The filmmakers and studio passed on the project, with Zwick and Herskovitz citing a Japanese cattle drive project they were already developing. But the plaintiffs contend that soon after, the project morphed into a project with the same protagonist, premise, and title of the Benay script.

In a 2010 ruling, the U.S. Ninth Circuit Court of Appeals analyzed the Benay script and the movie, and found that their “similarities are substantial for purposes of an implied-in-fact contract under California law” (Benay v. Warner Bros., U.S. Court of Appeals for the Ninth Circuit, # 08-55719). The ruling was considered watershed, as it solidified protection for the ideas of writers and other creative professionals under state law.

The case follows a similar one in which Zwick was a central figure, for alleged idea theft involving the 1998 film “Shakespeare In Love” (Miller v. Miramax, U.S. District Court, Central District of California, #2:99-cv-08526-DDP-AJW). According to court records in that case, two writers claimed that Zwick appropriated elements from their script, about a young Shakespeare with writer’s block that is unlocked by a romance. After a federal judge ordered the studios to disclose their accounting records for a calculation of damages, the parties settled out of court. Despite the controversy, Zwick received an Oscar for producing the film.

“The Last Samurai” was the first script by the Benays, who conceived of it after Aaron Benay majored in Japanese Studies at Duke University and Stanford University, and lived and studied in Japan. Since then, the Benays have written scripts for Leonardo DiCaprio, legendary director Ridley Scott, and Academy Award-winning producer Brian Grazer. They were also writers on the upcoming San Francisco earthquake epic “1906,” which Brad Bird is attached to direct following his success with another Tom Cruise hit, “Mission: Impossible – Ghost Protocol.”

John Marder, a partner in Marder Zink & Karlzen, is a Super Lawyer and has been California Lawyer Magazine’s California Lawyer of the Year.


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John A. Marder, Esq.
Marder, Zink & Karlzen LLP
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