Paid a screenwriter upfront to rewrite screenplay, she has not finished nor has she refunded my money. Screenplay was suppose to be sent to a couple of executives, but because she didn´t deliver the screenplay when she said she would, they are impatiently waiting. She has refused to even give me a future completion date even though I have asked numerous times. She told me she would be finished two months ago, and has not yet delivered. Daniel Manus and Cherisse Nesbit are waiting on this screenplay, but this screenwriter is literally throwing me under the bus and is costing me so much money.
Because you didn't mention one, I think we can assume you don't have a formal, written agreement with the screenwriter.
Which means you either have to build one using the various emails and other written communications between you two or you'll have to assert that an oral contract was created. Either way, for a contract to be formed at all its material terms must be sufficiently definite so that a court can determine whether it was breached. Absent that, the intention of the parties is too uncertain and indefinite so there literally isn't any contract to enforce.
So ... what was the agreed-upon delivery date? What script approval criteria was agreed-upon? What directions was she given as to storyline and plot? Who had the obligation to clear the rights to ensure the amended script could lawfully be used? How could the contract be properly terminated? What state's law controlled the interpretation and enforcement of the contract? Who would own the copyright in the amended script? What rights to that script were you buying? Etc., etc.. etc.
IF your own California-licensed intellectual property attorney reviews all the facts and concludes you and the screenwriter did form a contract then the next question is whether the screenwriter has breached it. Maybe, maybe not.
IF your attorney concludes no contract exists then you may have one or more tort-based claims like negligence or intentional misrepresentation or some equitable claims like an accounting or unjust enrichment. At the end of the day, you paid the screenwriter money so you're entitled to either your money back or to get what you paid for [though the court cannot order the screenwriter to write and deliver the script].
One major wrinkle: The ONLY way for the screenwriter to transfer her copyright in the portions of the script that she writes is for her to sign an "assignment" agreement that expressly transfers her copyright to you. This is true even though she's amending an already-existing script. She owns the copyright in the contributions she makes to the "derivative" amended script even though you paid her to write them.
In short, without a formal, written contract you'll have a difficult time resolving this dispute. There are an awful lot of moving parts, both factually and legally, for your own attorney to consider. You need to hire one before you contact the screenwriter again. Too often parties to a dispute damage their legal positions, and limit their remedies, when tempers flare and accusations fly. Good luck.
The above response is general information ONLY and is not legal advice, does not form an attorney-client relationship, and should NOT be relied upon to take or refrain from taking any action. I am not your attorney. You should seek the advice of competent counsel before taking any action related to your inquiry.
Well of course you can sue. This is America after all. What is less clear is exactly what the cause of action will be as well as the actual damages. Is there a written agreement? If not, your burden increases. At some point it would be incumbent on you to enlist another writer to complete the job then once your damages were liquidated you can go after the first screenwriter for any out of pocket expenses. If you sue with no extent written agreement the court will have to determine what is industry standard and commercially reasonable, etc.
In CA , assuming this is also where the screenwriter is located, the small claims court award cap is 10K. This might be the best option if you cannot work it out with her.
I suggest that you consult with a lawyer in private and discuss your objectives in more detail. You can start by calling around to several for a free phone consultation, get some insights then pick the best fit to work with.
DISCLAIMER: this is not intended to be specific legal advice and should not be relied upon as such. No attorney-client relationship is formed with the law firm of Natoli-Lapin, LLC on the basis of this posting.
Yes, you can sue her. The real question is the cost of the suit and whether you can prevail. I suggest that you retain an experienced Copyright/IP litigation attorney to review your agreement and communications with the screen writer and counsel you on your next steps. A lawsuit may not achieve your business result, where an attorney's letter and negotiations may achieve a much better result.
For more detailed advice, I recommend that you contact an experienced Copyright/IP Litigation attorney to advise you in confidence about your options and potential costs. Many IP specialty firms, like ours, offer an initial free conference by telephone, video conference or in person if you are available locally and would be happy to speak with you. Call and speak with an experienced Copyright Litigation attorney who can assist you.
Mr. Sack's postings on Avvo are of a general nature, based on the facts provided and are not intended to be taken as legal advice or to establish an attorney-client relationship.
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