Metropolitan News-Enterprise


Monday, May 1, 2017


Page 1


Author of ‘Killer Inside Me’ Screenplay Has No Right to Remake—Court of Appeal


By a MetNews Staff Writer


The author of the screenplay for the 1975 film “The Killer Inside Me” has no enforceable claims against the producers of the 2010 remake, the Court of Appeal for this district ruled Friday.

Div. Three upheld summary judgment in favor of Muse Productions, Inc., Kim Productions, LLC and WIndwings Productions, LLC on a cross-complaint brought against them by Robert Weinbach and his production/distribution company, Cyclone Productions Inc.

Justice Luis Lavin, in an unpublished opinion, agreed with Los Angeles Superior Court Judge Linda K. Lefkowitz that a mistake of fact concerning the rights held by Weinbach and Cyclone precluded those parties from enforcing an agreement allowing them to participate in the remake.

The films were based on the 1952 novel by Jim Thompson about a sadistic southern deputy sheriff. The first film was directed by Burt Kennedy and starred Stacy Keach and Susan Tyrell; Michael Winterbottom directed the sequel featuring Casey Affleck and Jessica Alba.

The first film was released by Tekim, Ltd., an affiliate of the company that purchased Cyclone’s rights to the novel. Cyclone had acquired those rights from Greenway Productions, which had acquired them from Warner Bros., which had acquired them from Thompson.

At the same time that Cyclone sold its rights to Tekim’s parent, Tekim reached an agreement with Weinbach to produce and direct the film. Tekim later fired Weinbach, who sued.

The 1976 settlement of that litigation included a transfer from Tekim to Cyclone of “all rights and licenses” needed to produce a remake of the film “based upon the literary material acquired by Cyclone…as distinguished from any literary material” separately acquired by Tekim.

In 1981, Thompson’s widow—the author died in 1977—renewed the copyright to the novel and reassigned to Warner Bros. the rights it had acquired from the author. Warner Bros. subsequently transferred those rights back to the heirs, subject a right of first refusal to distribute any subsequent film based on the novel.

Muse’s involvement began in 1994, when it purchased from the heirs an option to purchase film and television rights to the novel. The following year, Weinbach and Cyclone sued Warner Bros. and Muse, claiming that Cyclone was—as a result of its settlement with Tekim—the sole and exclusive owner of the “worldwide” rights to produce a remake.

In 1996, the lawsuit was dismissed by a judge who found that Cyclone owned no domestic rights to the novel. Muse then sued for malicious prosecution; that suit was settled in 1997. Under the settlement agreement, the parties were to establish a joint venture to produce the remake, to contribute all of their respective rights to the joint venture, and to dismiss their pending lawsuits should they obtain a full commitment for financing.

Chris Hanley, Muse’s president, later testified that his company entered into the agreement believing that Cyclone had exclusive worldwide film and television rights to the novel.

The joint venture never produced a movie, leading Windwings Productions to seek out the rights to the remake. In 2009 and 2010, Windwings obtained a quitclaim from Tekim and its parent, J.S. Company, of their rights to the novel; an option to purchase all domestic film rights to the novel from the Thompson heirs; and all rights to a screenplay based on the novel from Muse.

Windwings then granted a nonexclusive right to produce a movie based on the novel to Kim, which released the second film.

The litigation ruled on Friday by the Court of Appeal began in 2009, when Muse sued Weinbach and Cyclone, claiming they had misrepresented the nature and extent of Cyclone’s rights by not mentioning the 1974 agreement by which Cyclone and Weinbach conveyed “worldwide, absolute, unqualified, sole and exclusive” rights to Weinbach’s screenplay to J.S.

Weinbach and Cyclone cross-complained against Muse, Windwings, and Kim alleging breach of the 1997 agreement and various torts related to Muse’s sale and Kim’s acquisition of rights.

The trial judge eventually ruled that the only right Cyclone had obtained in the 1976 settlement was a non-exclusive right for one remake “using Weinbach literary material,” and that the 1997 agreement was voidable and subject to rescission because Muse entered into it in the mistaken belief that Cyclone owned the sole and exclusive worldwide film and television rights to the novel.

Lavin, writing for the Court of Appeal, said Lefkowitz was correct. The undisputed material facts, he said, established that there was a “mistake of fact” and not an “error in judgment.”

He cited Smith v. Zimbalist (1934) 2 Cal.App.2d 324, in which the court held that prominent violinist Efrem Zimbalist Sr. could rescind his contract to purchase what he and the seller both believed to be Stradavarius and Guarnerius violins, but turned out not to be.

In the present case, Lavin said, the parties believed that Weinbach and Cyclone held exclusive worldwide rights to remake the move. “Importantly, there is no evidence that the parties anticipated that Cyclone’s rights could be determined to be less extensive on some future date after they executed the settlement agreement,” the justice wrote.

Muse, he went on to say, would have had no reason to enter into the 1997 agreement had it known the true facts, because Muse already had the rights to release a film in the United States and would have had no reason to enter into an agreement with Weinbach and Cyclone in the absence of their holding worldwide rights.

Muse’s knowledge of the 1976 agreement, the justice further concluded, did not place it on notice of the possibility that Weinbach and Cyclone had less extensive rights than they claimed. Lavin said there was “no evidence that Muse was grossly negligent, or acted in a preposterous or irrational manner, when it did not conduct a more thorough inquiry into the nature of Cyclone’s rights,” and that Muse reasonably relied on Weinbach’s representations.

Attorneys on appeal in M.U.S.E. Picture Productions Holding Corp. II v. Weinbach, B261146, were Becky S. James and Jessica W. Rosen of James & Stewart LLP for Weinbach and Cyclone and Clark L. McCutchen for Muse, Kim, and Wildwings.


Copyright 2017, Metropolitan News Company