Lawsuit Over Botched Film Credits For ‘Good Kill’ Held SLAPP

Thursday, October 6, 2016

Page 1

Lawsuit Over Botched Film Credits For ‘Good Kill’ Held SLAPP

By a MetNews Staff Writer

The listing of credits in the opening of a film constitutes “speech” and an action complaining that the credits did not display the name of the producer with the prominence provided for by contract was subject to an anti-SLAPP motion, the Court of Appeal for this district has decided, ordering dismissal of the action.

Plaintiff Mark Amin, along with his production and financing company, brought suit against Cedar Skies Nevada, LLC, owner of the 2014 movie, “Good Kill,” and against the film’s exclusive sales agent, because his name and an identification of him as producer were not, contrary to an agreement, on a “single card”—that is, with no other credits on the screen while his were flashed.

Ethan Hawke and January Jones are seen in a publicity shot for “Good Kill.”

Instead, his name was on a “shared card,” beneath those of two executives of the defendant distribution company. The opinion notes that Amin “has extensive experience in the movie industry, and has been involved in the production of over 80 films since the late 1980’s, including Oscar and Emmy contenders and winners.”

The defendants brought an anti-SLAPP motion, arguing that their free-speech rights were implicated and there was public interest in the matter (the first prong of the statute) and that the plaintiff could not show a probability of ultimately prevailing (the second prong). Los Angeles Superior Court Judge Susan Bryant-Deason denied the motion.

Reversal came on Tuesday in an opinion that was not certified for publication.

“The film was, by Mr. Amin’s own testimony, ‘a high-visibility project, with potential for award recognition,’ and ‘an important and artistic film.’ ” Justice Elizabeth Grimes of Div. Eight noted.

She said that when the plaintiffs sought a temporary restraining order and injunctive relief, they proclaimed the movie to be a “prominent” one with “A-list lead actors Ethan Hawke, recently in ‘Boyhood,’ and January Jones, of ‘Mad Men’ fame”; that the film “addresses a hot-button topic, drone warfare”; and that it was “well reviewed in top-drawer publications such as the New York Times and the New Yorker.”

Citing language in Code of Civil Procedure §425.16(e)(4), which delineates a catch-all type of protected activity, Grimes wrote that “it seems clear that plaintiffs’ claims arose from ‘conduct in furtherance of the exercise of’ free speech rights ‘in connection with a public issue or an issue of public interest.’”

Interest in Credits

Amin argued that there was a lack of public interest in the credits, themselves. Grimes disagreed, saying:

“Indeed, the credits are a reflection of the creative process, identifying as they do those responsible for production of the film. Credit for the production is surely a matter of public interest throughout the film industry, if not to the viewing public at large. As defendants point out, this very lawsuit immediately generated press coverage in the Hollywood Reporter.

“In short, defendants’ conduct in creating and distributing the credit sequence, an essential part of the film itself, was ‘conduct in furtherance of the...right of free speech in connection with...an issue of public interest.’ ”

The producer pointed out that the defendants claimed that their failure to accord him the agreed-upon billing was a mere “mistake,” rather than it having been done deliberately. While contesting the accuracy of their assertion—based on his repeated demands for a correction prior to the film’s release and assurances that the change would be made—Amin maintained that if the breach was, in fact, simply the product of a slip-up, it was not conduct in the exercise of First Amendment rights.

Grimes responded:

“The free speech rights here concern the production and distribution of a film, in the course of which a mistake was made regarding Mr. Amin’s credit. There is nothing illogical in the conclusion that both correct and mistaken speech involve First Amendment activity. It is the act of producing and distributing the film—including its opening credits—that is protected activity, and that necessarily includes mistakes made in the course of doing so.”

The jurist found “no tenable distinction” between the present case and Kronemyer v. Internet Movie Database Inc. (2007) 150 Cal.App.4th 941, where it was held that the filmography website IMDb could not, on First Amendment grounds, be ordered to list the plaintiff as executive producer of the movie, “My Big Fat Greek Wedding.”

Terms of Agreement

The written agreement in issue not only provided for single-card credit for Amin, not later than the third card to crop up, but credit for the company of which he was founder and chief executive officer, Sobini Films, Inc. The agreement said:

“No casual or inadvertent failure of Clear Skies to comply with the credit requirements, nor any failure of any third party to comply therewith, shall constitute a breach of this Agreement. If Clear Skies or a third party fails to accord Sobini credit pursuant to the terms of this Agreement, Clear Skies agrees to use reasonable good faith efforts to prospectively cure such failure following receipt of written notice from Sobini setting forth in detail such failure, but nothing shall require Clear Skies to cease using or to replace prints, negative, advertisements or other materials then in existence.”

Grimes concluded that in light of that proviso, there was not a probability that Amin would prevail in the end, explaining:

“Ordinarily, a mistake in the credits, intentional or negligent, would constitute a breach of contract, because the credit agreement was a material term….Here, however, the parties agreed that a ‘casual or inadvertent failure’ to comply with the credit requirements would not constitute a breach of contract. Thus, even though the form of producer credits may have ‘monumental’ significance to a producer, the parties agreed that a credit mistake that was not intended or planned does not constitute a breach.”

The case is Sobini Films v. Clear Skies Nevada, B267431.

Attorney Alan Rader represented Amin and his company. Eisner Jaffe attorneys Harvey I. Saferstein, a former State Bar president, along with Sarah F. Powers and Brianna Dahlberg, acted for the defendants.