Watchmen Producer Explains Why Fox Doesn't Deserve A Cut

from the hindering,-not-helping dept

There's been plenty of discussion over the fact that Fox is going to end up making money from the movie Watchmen, despite having absolutely nothing to do with the film itself. ChurchHatesTucker alerts us to an open letter, over at HitFix, from one of the producers of the movie, pointing out how ridiculous this is from a common sense approach. Basically, Fox pretty much did everything possible to not let the movie ever go into production, and then Warner took incredible risks, spending a ton of money on a script that Fox (and others) hated, giving it to a director without a commercial hit at the time, and casting no brand name stars. The point that Lloyd Levin is making is that, no matter what the law says, from a basic common sense standpoint, it's ridiculous that Fox should get any money at all. You should read the whole thing, but here's an excerpt:
Larry and I developed screenplays at five different studios. We had two false starts in production on the movie. We were involved with prominent and commercial directors. Big name stars were interested. In one instance hundreds of people were employed, sets were being built - An A-list director and top artists in the industry were given their walking papers when the studio financing the movie lost faith.

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. Irony indeed, and then some.

Through the years, inverse of the lack of studio faith has been the passionate belief by many many individuals - movie professionals who were also passionate fans of the graphic novel - who, yes, wanted to work on the film, but more for reasons of just wanting to see the movie get made, to see this movie get made and made right, donated their time and talent to help push the film forward: Writers gave us free screenplay drafts; conceptual art was supplied by illustrators, tests were performed gratis by highly respected actors and helped along and put together by editors, designers, prop makers and vfx artists; we were the recipients of donated studio and work space, lighting and camera equipment. Another irony, given the commercial stakes implied by the pitched legal dispute between Fox and Warners, is that for years Watchmen has been a project that has survived on the fumes of whatever could be begged, borrowed and stolen - A charity case for all intents and purposes. None of that effort, none of that passion and emotional involvement, is considered in the framework of this legal dispute.

From my point of view, the flashpoint of this dispute, came in late spring of 2005. Both Fox and Warner Brothers were offered the chance to make Watchmen. They were submitted the same package, at the same time. It included a cover letter describing the project and its history, budget information, a screenplay, the graphic novel, and it made mention that a top director was involved.

And it's at this point, where the response from both parties could not have been more radically different.

The response we got from Fox was a flat "pass." That's it. An internal Fox email documents that executives there felt the script was one of the most unintelligible pieces of shit they had read in years. 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.

From there, the executives at Warner Brothers, who weren't yet completely comfortable with the movie, made a deal to acquire the movie rights and we all started to creatively explore the possibility of making Watchmen. We discussed creative approaches and started offering the movie to directors, our former director having moved on by then. After a few director submissions, Zack Snyder came onboard, well before the release of his movie 300. In fact, well before its completion. This was a gut, creative call by Larry, me and the studio... Zack didn't have a huge commercial track record, yet we all felt he was the right guy for the movie.

Warner Brothers continued to support, both financially and creatively, the development of the movie. And eventually, after over a year of work, they agreed to make the film, based on a script that, for what it's worth, was by and large very similar to the one Fox initially read and deemed an unintelligible piece of shit.

Now here's the part that has to be fully appreciated, if for nothing more than providing insight into producing movies in Hollywood: The Watchmen script was way above the norm in length, near 150 pages, meaning the film could clock in at close to 3 hours, the movie would not only be R rated but a hard R - for graphic violence and explicit sex - would feature no stars, and had a budget north of $100M. 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. 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."

Shouldn't Warner Brothers be entitled to the spoils - if any -- of the risk they took in supporting and making Watchmen? Should Fox have any claim on something they could have had but chose to neither support nor show any interest in?

Look at it another way... 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.
All in all, what Levin is saying is effectively the same point we've made about the innovation market over the years: the "idea" is a very tiny part. It's all about the execution. Fox wanted nothing to do with the execution and wasn't even that interested in the idea. Warner put up all the risk, and now Fox gets rewarded because at one point it bought the rights to just the idea. Once again, we're seeing society overvalue the idea and vastly undervalue the execution.

Of course, it's no surprise to see Fox's response is the same as plenty of patent holders in the same situation (paraphrased, obviously): "Tough noogies. The law is the law, and we win, so suck it." Wouldn't it be nice if, just once, we got to see common sense match up with what the law allows?


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    Rekrul, Jan 12th, 2009 @ 1:18pm

    Wouldn't it be nice if, just once, we got to see common sense match up with what the law allows?

    Common sense has no place in US law. :(

     

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      Gary, Jan 13th, 2009 @ 7:24am

      Re:

      The law by definition is supposed to be black and white, right or wrong, it has to be, it has to be above reproach. But, its the judge/jurys responsibility to APPLY common sense to the law and decide on the verdict. Remember folks, this nation wasn't founded by communists or strict adherence to the law.

       

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      m0m0m0, Jan 13th, 2009 @ 6:36pm

      Re:

      ...right along with fairness, justice, and equality...

      welcome to America, please file for Jingoism at the door...

       

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    Michael Beck, Jan 12th, 2009 @ 1:32pm

    Fox may be jerks...

    But.. fox is correct.. the law is the law. And it makes perfect sense for fox to get paid here.

    They own the rights.. plain and simple.. if you don't like it change the laws..

    I think there should be some limit on how long intellectual property deals can last.. but there is no such limit! So Fox has every right to sit on this movie and never let anyone else make it ether!

     

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      Mike (profile), Jan 12th, 2009 @ 1:45pm

      Re: Fox may be jerks...

      But.. fox is correct.. the law is the law. And it makes perfect sense for fox to get paid here.

      I'd argue against the "perfect sense" part.

      They own the rights.. plain and simple.. if you don't like it change the laws..

      The way you change the laws is by showing how they don't make sense. Yet when we do that, people say "but it's the law, so don't complain!"

       

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      Anonymous Coward, Jan 12th, 2009 @ 4:13pm

      Re: Fox may be jerks...

      The law is the law indeed. Laws are subject to change if a circumstance is found unjust. The only real problem i have with the law is that the burden of change is on those that were wronged.

       

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    FOX SUX, Jan 12th, 2009 @ 1:32pm

    That FOX for you!

     

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    Trails (profile), Jan 12th, 2009 @ 1:37pm

    As much as I support warner's risk taking in this project

    Isn't this really about ownership? as I understand it, Warner didn't get all the legal ducks in a row in terms of film rights, or at least that's the allegation from fox.

    The only counter to the fox position is that they seemed to have wait until the most in-opportune time to assert their ownership, essentially using whatever rights they own/claim to own in a predatory manner.

    I guess what I'm getting at is that I have a hard time seeing how this is a legislative/systemic failure, and not just a failure on the part of Warner's legal dept. Am I missing something?

     

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      Mike (profile), Jan 12th, 2009 @ 1:46pm

      Re: As much as I support warner's risk taking in this project


      I guess what I'm getting at is that I have a hard time seeing how this is a legislative/systemic failure, and not just a failure on the part of Warner's legal dept. Am I missing something?


      No doubt that it is a failure on the part of Warner's legal department, but the end result definitely does highlight a legislative/systematic failure, in that Fox, for only owning a very small part of this (the "idea") which is vastly less important than the execution, gets to put a stop to the whole movie and demand a huge chunk of the profits.

      The "punishment" is out of line with the offense.

       

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        Michael (profile), Jan 13th, 2009 @ 5:26am

        Re: Re: As much as I support warner's risk taking in this project

        It seems to me the logical aproach would be for Warner to merely reimburse Fox for what they paid for their movie rights. It makes no sense for them to get a percentage of profits from the movie, they had nothing to do with.

         

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    Anonymous Coward, Jan 12th, 2009 @ 1:40pm

    "...the movie would not only be R rated but a hard R - for graphic violence and explicit sex..."

    MMmm.... explicit sex...

     

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    chris (profile), Jan 12th, 2009 @ 1:44pm

    why does it take a year to decide to make a film?

    it seems like the price of film making has lost touch with reality.

    also, if a lot of work was donated to the film, why is the budget "north of $100 million"?

    no wonder the hollywood studios are in a twist over piracy, these film productions bleed cash like it's their job. surely if the costs came down, there would be more movies (and more money) to be made.

     

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      SteveD, Jan 12th, 2009 @ 5:07pm

      Re: why does it take a year to decide to make a film?

      Did you miss the part where he mentioned the first false-start had already employed 300 people?

      You don't set up a project that sized based on a few weeks of planning.

       

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    Carl, Jan 12th, 2009 @ 1:51pm

    Hmmmm....

    Interesting thought here...Warner could agree to the rights for Fox but part of me wonders if they could turn around and bill Fox as a contractor for the movie since they did do the work. It's a long shot but it might make Fox take a step back.

    Get the money for the rights and then turn around and pay contractor fees.

    Like I said...long shot. But Warner will get a piece of the pie and get the credit for doing it. I just say Bravo to them for taking the chance on making it.

     

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    Analyst (profile), Jan 12th, 2009 @ 2:06pm

    ...Fox is allowed to be jerks

    From Michael Beck: "I think there should be some limit on how long intellectual property deals can last.. "

    One more comment to add to your already accurate response:

    THERE IS A LIMIT: The duration of EVERY contract is determined by a combination of two factors:
    (1) The Law
    (2) The duration agreed upon by the Parties and set forth within the contract

    Periods of 1 - 5 years are common in IP option contracts. It's not Fox's fault nobody thought of that.

    And then, Lloyd Levin goes even farther out into the woods by failing to mention the fact that THE ORIGINAL CREATERS KNEW THEY HAD SOLD THE RIGHTS AND MADE THE FILM ANYWAY! They didn't even try to buy the rights back.

    Shame on Fox?!? Hardly!! Shame on everyone else for being stupid, shame on them a second time for being willful about it, and then shame once more for whining about it.

     

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    Anonymous Coward, Jan 12th, 2009 @ 2:09pm

    Is Fox being negligent for not bringing it up sooner?

    Fox brought nothing to the table, had no input into the production, and the production was accomplished without intervention from Fox. Studios also know what each other is working on LONG before productions start.

    I say they are due about 2ยข per patron on ticket sales. Nothing for DVD/Rental/PPV.

     

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    dssstrkl, Jan 12th, 2009 @ 2:11pm

    There's a reason why people everywhere are saying that Fox should go eat all the dicks: http://www.cracked.com/blog/fox-can-eat-several-dicks/

     

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    usmcdvldg, Jan 12th, 2009 @ 2:13pm

    So let me get this straight.

     

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    Parker, Jan 12th, 2009 @ 2:14pm

    Unfortunately, it seems like Fox is correct in a legal sense here. I especially have to agree with them after reading the response from Fox's spokesperson that was posted on the Hitflix post that is referenced in this Techdirt post.

    And yes, I agree with you that the law doesn't make sense here.

    However, Fox and their army of lawyers think it makes sense.

     

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    Anonymous Coward, Jan 12th, 2009 @ 2:15pm

    Change the law?

    "They own the rights.. plain and simple.. if you don't like it change the laws.."

    It's hard to find someone with lots of money that will change the law correctly. With that being said, it takes a lot of money to change laws because the government could careless about the citizens. By definition, we wouldn't have to change the laws because a caring government would notice this issue and fix it.

     

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    hegemon13, Jan 12th, 2009 @ 2:16pm

    This sucks

    Exclusive deals ought to have a very short legal limit if there is no attempt to move on them. At the very least, the owner of the source IP should have the right to buy that exclusive back at NO MORE than the original price if the studio abandons a project or makes to effort to pursue it. Exclusives are there so that a studio can corner the market on a source and make more money on their adaptation. If they are doing no adaptation, the exclusive should vanish.

    Unfortunately, "should" means nothing, and Fox is legally in the right. Sucks for Warner, but I think they will still make plenty of money off this film. Either that, or it will totally flop, in which case Fox should make nothing, either.

     

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    usmcdvldg, Jan 12th, 2009 @ 2:18pm

    So let me get this straight.

    I have an idea for a film,
    I sell the rights to said idea,
    I write a screenplay for which the people I sold the rights to hate,
    I sell the screenplay to someone else and make a movie
    I bitch when the first people who PAYED MONEY for the rights get angry and sue.


    How is fox abusing the copyright system again??


    I get that its ironic, and F'ed up that fox will make money on something they said they hate! But unless I'm mistaken about the facts, this is the screen play writers faults in its entirety and NO ONE ELSES!!!!!!!!!!!!!!!!!!!!

     

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      Dan, Jan 12th, 2009 @ 7:13pm

      Re: So let me get this straight.

      Simply put, Fox knew far in advance that Warner was beginning to produce a Watchmen (by the way, Warner owns the intellectual property to Watchmen), and failed to act until long after the movie had entered post production. Essentially, Fox bided their time until the could assert their "rights" and basically, for all intents and purposes, extort money from Warner.

       

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        Dan, Jan 12th, 2009 @ 7:18pm

        Re: Re: So let me get this straight.

        I apologize for the poor grammar. I'm not good at multitasking and TV was on.

         

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        usmcdvldg, Jan 13th, 2009 @ 6:10am

        Re: Re: So let me get this straight.

        Once again, I get the iron, but if you want to make a movie, common since would dictate not to sell the rights to it. Fox paid for the movie, but didn't like the script. Tuff shit writers.

        If fox had somehow stole or subverted the writes in a way the writers hadn't had agreed to I would agree with you. But they not only made but profited from the situation.

         

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      Jon, Jan 12th, 2009 @ 10:17pm

      Re: So let me get this straight.

      agreed. It's Fox's fault that they passed on what the producer himself deems a subpar, overlong, nearly unmarketable script to a movie they already owned the rights to? Fox is certainly acting out in bringing the suit this late in the game, but I can't understand why this producer thinks they would have run with this version of the film anyways.

       

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    demian, Jan 12th, 2009 @ 2:18pm

    I say we all should download it for free when it's out and send 10 bucks to warner =D

     

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    demian, Jan 12th, 2009 @ 2:21pm

    Though I would really like to see it in the theatre and buy the fancier blu ray edition but now I dont know, I don't want to give a penny to fox for that

     

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    PaulT (profile), Jan 12th, 2009 @ 3:03pm

    I'll just repeat what I've said before:

    Watchmen is a famous and much sought-after property. Fox had many, many years in which to capitalise on this but for various reasons failed to do so. For whatever reason, Warner seemed to believe they had obtained the rights to make a version of this story, and did so to the best of their abilities. Nothing but positive feedback seems to have been forthcoming from those who have seen the movie, and the trailers look incredible.

    Now, here's the thing. Fox have made some shoddy movies over the years instead of making this movie. Whatever claim to the movie that Fox has is apparantly a legal loophole rather than an act of deception on Warner's part (they didn't make the movie knowing they didn't have the rights... they actually thought they were entitled to spend $100 million on this project).

    Fox have various choices here. They could demand a cut of theatrical gross. They could demand a large proportion of DVD sales, which are likely to be significant if the movie is anywhere near as good as it looks. Instead, they are banning the movie.

    This achieves nothing. You're an absolute fool if you believe that an HD copy of this movie will not leak onto torrent sites. Such bad faith is being generated that even if Fox somehow managed to "steal" the movie and release it themselves, many fans would boycott the movie.

    What we have here is a no-win situation. If Fox took a cut of the movie and DVD sales, it would most likely make a healthy profit with no work required on their part. Instead, they are seeking to ban a movie in an age where a total ban is next to impossible. Instead of making a lot of happy fans, they are not only creating resentment towards a fading studio (have you seen their line-up this year? Apart from Wolverine and Avatar, there's little that would stop me from feeling like I'd want to rip my eyes out of their sockets!), but stunting what could potentially be a massive blockbuster. All because they passed on the chance to make the movie in favour of the likes of The Happening and Alvin & The Chipmunks.

     

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      interval, Jan 12th, 2009 @ 4:36pm

      Re:

      "Fox had many, many years in which to capitalise on this but for various reasons failed to do so."

      Apparently, as stated above, Fox viewed the script and/or story as an unmitigated piece of crap. I suspect what happened was that; although the prevailing POV at Fox was that the story was shit, one or more of the corp. heads kept pointing out to the others that there was this enormous interest in the project and the legions of comic convention fan boys who seemed to really want to see the film made. They probably shook their collective heads and said "Well, I don't get it, but at least we own it, we can just sit on it." Which they did and it finally paid off for them. I'm not sure exactly what Fox did was wrong. Kinda shitty, but not wrong. I haven't read or heard anywhere about what Warner did, if anything, to buy the rights outright from Fox. Not one word. Perhaps some one has the skinny on that?

       

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        PaulT (profile), Jan 13th, 2009 @ 3:46am

        Re: Re:

        If the script is poor, you rewrite it.

        What Fox did was to totally ignore the project until Warner had *completed* the movie and the final trailers released (note that they didn't sue when the project was in pre-production, not when it was being filmed. only when it was ready for release. You're pretty naive if you think that a major studio can be even remotely unaware of a $100 million production at a rival studio. It's also worth noting that both Paramount and Universal had attempted the project between Fox's and Warners' attempts, so this lawsuit was waiting to happen no matter who finally produced it.

        As for the rights: it's a messy legal issue but it appears that *some* of the rights to the movie still lie with Fox. Warners own the trademark, etc, but distribution rights and a few other things are technically still with Fox.

        That's not the issue here so much as the reaction. Nobody cares that Waner's legal department cocked up. What they care about is the fact that Fox are apparently happy to ban the movie rather than reach an amicable agreement. That's where the criticism is coming from.

         

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    John, Jan 12th, 2009 @ 4:32pm

    A few thoughts

    The part I don't understand is how WB could spend $100 million to make a movie that they didn't have 100% legal rights to. Instead of yelling at FOX, shouldn't we be yelling at the WB lawyer(s) who said the rights were clear?
    Or is this part of WB's legal strategy: don't blame their own guy who mistakenly thought the movie could be made- blame the other studio who's exercising their legal rights.

    Like the above poster said, it may be "common sense wrong" for FOX to claim they own a movie they didn't make, but don't they have a signed contract that says they own the rights? And did they pay any money to get the rights to the movie?
    So WB can just come along and claim they own the movie because FOX didn't do anything with it?

    By this reasoning, should any studio be able make a movie and take it away from another studio who isn't doing anything with the property?

    And like it or not, this is the current state of the law. Instead of slamming FOX, we should be petitioning lawmakers to change the law and using this as example of why things are "wrong".

    The above poster suggested that FOX could settle for a cut of the movie's earnings... have you seen Hollywood's balance sheets? How many movies actually "make a profit"? With clever book-keeping, every movie (maybe even Titanic and The Dark Knight) "lose money"... which means there's no profit to pay to FOX.

    And, of course, the studios will claim much of their money is "lost" to piracy. Sure, WB *could* pay FOX some of the profits from the Watchmen movie, but those damn pirates cost the movie $50 billion in lost ticket revenue.

     

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    mojo, Jan 12th, 2009 @ 6:05pm

    FOX should be penalized for not staking a claim when Warners announced they were making the film. Instead, they waited until it was clear that the film had generated enough buzz and interest to become a success.

    Judges do take that sort of thing into account and it will probably be considered when deciding what - if anything - FOX is entitled to.

    Meanwhile, FOX generates huge amounts of negative press. What's THAT worth?

     

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    Paul Brinker, Jan 12th, 2009 @ 7:32pm

    Basic Law

    The Judge is going to ask one question, when did fox know about WB making the movie, How soon after that point did Fox tell WB to stop? If that time = really long then the judge will ask why.

    If Fox can come up with a really really good reason why, it gets some money, as well as some rights.

    If on the other hand it did it for no good reason (we thought the movie would flop) then the judge will give almost nothing.

     

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      PaulT (profile), Jan 13th, 2009 @ 4:03am

      Re: Basic Law

      "when did fox know about WB making the movie, How soon after that point did Fox tell WB to stop?"

      According to Wikipedia, Warner announced the project on June 23, 2006. It's likely that Fox would have gotten news of the project before official announcement (development actually started in 2005), but they would have known about it since at least that date.

      I've not found any information to suggest that any informal attempt to negotiate was made before the original complaint was filed in February 8, 2008, although it's likely that there would have been some communication.

       

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    Tamara, Jan 12th, 2009 @ 11:29pm

    Fox, another truly wonderful News Ltd company. News Ltd here in Australia sue everyone all the time for completely stupid reasons, including laughable suing a TV station for running a story on them without verifying a piece of information, when their newspapers in Australia(don't know about in the US) don't seem to know anything about fact-checking at all and constantly print blatantly incorrect information.

     

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    Twinrova, Jan 13th, 2009 @ 4:20am

    While everyone else rants against Fox, I'll...

    ... take a gander on the lawsuit.

    I'm extremely curious to know what will happen should Fox lose this case, and Warner gets the "rights" to franchise a movie they didn't have rights for to begin with.

    After reading the blog about The Forge, lawsuits (or even requests) would all vanish overnight, wouldn't they?

    This could be huge for other lawsuits regarding what is, and what isn't, justified in the copyright/IP world, especially given so many lawsuits are about grabbing money, rather than principle of integrity.

    I certainly hope Fox loses, not because they want a share for doing nothing, but loses because someone took the correct path of "justice".

    However, I don't see Fox losing. I see the same broken system rewarding those for doing nothing.

    It is now the true American dream, leaving the rest of us wondering what the hell is wrong with this damn country.

     

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      PaulT (profile), Jan 13th, 2009 @ 9:48am

      Re: While everyone else rants against Fox, I'll...

      "After reading the blog about The Forge, lawsuits (or even requests) would all vanish overnight, wouldn't they?"

      Not really. The lawsuit in this case is rather unique, as it appears that Warner did obtain some of the rights to Watchmen, but an obscure clause left the distribution rights with Fox. It's more of a contract dispute than anything else.

      You referenced the Forge lawsuit, which is a trademark dispute and therefore a totally different area of law, AFAIK. This won't do much for or against trademark/IP disputes, but it will encourage the legal departments of these studios to make sure everything's 100% airtight before greenlighting anything.

       

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    Anonymous Coward, Jan 13th, 2009 @ 5:22am

    Fair settlement

     

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    Anonymous Coward, Jan 13th, 2009 @ 5:24am

    Fair settlement

    FOX wins and a is awarded exactly $1.00 to be delivered by Dollar Bill with a large plaque and a film crew.

     

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    identicon
    Anonymous Coward, Jan 13th, 2009 @ 1:45pm

    This is a very interesting article in that it truly points out the trials and tribulations experienced by content creators.

    Most of the above comments properly make note of the fact that the purported rights holder sat on its behind, did nothing to create the content, and now wants a cut of the action. The commenters' bottom line seems to be that one who contributes nothing to a work should receive nothing in return. It should be the ones who took the risk who should receive any reward.

    Personally, I have a hard time distinguishing this risk/reward situation from what happens once someone gets a copy of the movie in hand and publishes it to the world as a freebie. The latter did nothing to create the content, and yet it seems many would make a counter argument that risk/reward is no longer applicable.

     

    reply to this | link to this | view in chronology ]


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