Few people in Hollywood have the ability to say yes. The power to green light a motion picture--to commit the resources to make it--rests with a handful of studio executives whose names are well known throughout the industry.
A. Fredric Leopold is not one of those names. But the 78-year-old lawyer’s stamp of approval matters as much as any mogul’s. Leopold is dean of the script vetters. He dissects would-be movies and television shows for a living, looking for vulnerabilities: libelous depictions, trademark or copyright infringement, violations of privacy.
If Leopold finds none, he will “clear” a script, an endorsement required by insurance companies before they will underwrite a project. But if the soft-spoken grandfather deems a project too risky, chances are it won’t get made.
“No one in their right mind will commence principal photography on a project unless they’ve got approval from an insurance carrier,” said Doug Mirell, a lawyer with the Los Angeles firm Loeb & Loeb. “And they’re not going to get that unless they’ve got a clean bill of health from somebody like Fred.”
Leopold and other clearance experts are the actuaries of the entertainment industry. Often working with professional researchers, these lawyers seek to calculate--and, ideally, remove--all risks of potential legal action. They know that in the best case, a lawsuit will run up sizable legal fees. At worst, it can halt a film’s distribution.
Consider the case of Lebbeus Woods vs. Universal Studios, in which Woods, an artist, alleged that the 1995 movie “12 Monkeys” had copied his drawing of a wall-mounted chair with a sphere suspended in front of it.
A judge found the drawing’s resemblance to one of the movie’s props “striking” and, though the movie had been in release for 29 days, issued a preliminary injunction barring further distribution. (The studio hastily settled with Woods for an undisclosed sum.)
With stakes this high, movie studios and independent production companies are happy to pay clearance experts millions of dollars each year to, in Leopold’s words, “be careful--with everything.”
Planning to depict a living person, even in passing? Best to get the person’s permission.
Planning to depict a fictional person with a fictional telephone number standing in front of a fictional store on a fictional street? A handful of Los Angeles research firms specialize in checking such names, numbers and business listings against those in the real world. If they find a match, Leopold’s advice is usually simple: Change the script.
“Anybody can sue,” said Kathryn Bennett, vice president of de Forest Research Associates, Los Angeles’ oldest firm that does fact-checking for movies and television. “And people are very litigious.”
Earlier this year, champion fight ring announcer Michael Buffer sued Sony Pictures for using one line of dialogue--"Let’s get ready to rumble!"--in the movie “Booty Call.” Buffer, who uses the phrase to open every prizefight, charged that the movie copied his voice, style of delivery and cadence. The suit was settled.
(A similar suit that Buffer filed against New Line Cinema in 1996 over the Jackie Chan film “Rumble in the Bronx” is still in arbitration.)
Nicknames can prompt litigation: A karate teacher sued Columbia Pictures asserting that the producers of “The Karate Kid” movie trilogy had used his moniker for commercial gain. (A New York court sided with the studio, noting that the nickname was known to only a few of the man’s associates.)
Even set decorations can be actionable. A photographer sued New Line alleging copyright infringement because several of his self-portraits appeared in the background of one scene in the 1995 film “Seven.” And last week, a sculptor sued Warner Bros. alleging that the 1997 film “The Devil’s Advocate” displays a copy of one of his pieces, violating trademark laws and distorting the sculpture’s religious meaning.
(A judge ruled against the photographer because the photos were “virtually undetectable”; the sculptor’s suit, which seeks an injunction against showing the film, is pending).
These are the kinds of problems Leopold spends his days trying to avoid. During World War II, he dismantled live bombs for the Navy. He likes to joke that the job helped prepare him for what he does now.
Sitting at an antique English partner’s desk piled high with scripts, videotapes and correspondence, Leopold patiently tinkers with potentially explosive material--a drama about the alleged Unabomber, for example, or an episode of the reality-based television show “Cops.” The back of his swivel chair is so tall that when he spins to consult his 10 volumes of copyright law, he nearly disappears from view.
But don’t be fooled by Leopold’s modest presence. If the facts warrant, this dapper former mayor of Beverly Hills won’t hesitate to reject a project. And he can be a taskmaster: According to guidelines he wrote for “Cops” and “Real Stories of the Highway Patrol,” the face of an alleged criminal may not be shown without the accused’s permission.
“A lot of people sign the releases,” he said, shaking his head in awe. “They’d rather be on TV than not.”
One recent morning, Leopold held the fate of a comedy in his hands. In most cases, he is able to remove legal pitfalls by proposing a few small changes. But this project appeared to be beyond help. Its very premise--a proposed full-length feature that parodied another well-known film--was troublesome.
“You can parody a genre,” Leopold said--like “Scream” mocked horror films or “Blazing Saddles” spoofed Westerns. But zeroing in on one particular film--telling the story of “Fatman,” say, about a chubby caped crusader--is difficult to pull off, he said.
“A parody is not a slapstick or comedic version of something. That belongs to the copyright holder. A parody must be something more--something transformative,” he said, citing his favorite example: A Sid Caesar riff called “From Here to Obscurity,” that used the 1953 film “From Here to Eternity” as the starting point for what Leopold calls “Sid’s own cockeyed story.”
The comedy project Leopold was considering that day did not rise to Caesar’s level. He declined to clear it.
Such a diagnosis is a producer’s nightmare, which is why some people on the creative side of the industry have disdain for lawyers like Leopold.
“Who the hell is this guy?” one top agent recalls thinking after Leopold’s refusal to clear a script resulted in the death of a project favored by one of the agent’s A-list clients. “I’d never heard of him before.”
But that doesn’t blunt Leopold’s desire to try to save filmmakers from themselves. He freely admits that he can’t catch everything. A screenwriter’s source material, for example, is rarely revealed in the script, but numerous lawsuits are filed alleging plagiarism. The recent court battle over Steven Spielberg’s “Amistad"--which an author charges used her book as an uncredited source--is just the latest example.
Leopold is undaunted by these pitfalls.
“Screenwriters always like to jazz things up. In order to sell a ticket, they have to romanticize and take considerably more license than [TV writers] do,” he said fondly, as if talking about mischievous children. “But it’s dangerous to play around with the facts. In most states, you can’t call even a murderer a rapist without at least standing the potential of getting sued.”
Taking Care Overseas
A recent example proves the point: A man who was tried for murder and acquitted sued Sony Pictures for libel this year alleging that “Donnie Brasco,” the 1997 movie about an FBI agent who infiltrates the Mob, depicted him as a killer. Sony had disguised the man by changing his nickname from “Boobie” to “Paulie,” but the suit charged his identity was apparent. The suit is pending.
Leopold’s mind is home to the legal tenets that underlie such cases. He knows that Tennessee has a special statute designed to punish the unauthorized use of Elvis Presley’s likeness. He knows that New Hampshire’s statute of limitations on libel is six years (California’s is only one). And he knows that although it’s impossible to libel the dead in the United States, it pays to be careful overseas.
“In France and other civil law countries, members of a deceased’s family can sue for misuse of his name,” he said. So if you plan to distribute your film abroad, “you’ve got to watch out.”
Leopold had to travel to England, France, Greece and Italy before he felt comfortable approving the 1978 roman a clef “The Last Tycoon,” starring Jacqueline Bissett as an ersatz Jacqueline Kennedy Onassis. The late Maria Callas’ portrayal particularly worried him--"they showed her parading around,” he recalled, “without any clothes on"--but her estate never filed a claim.
To walk the halls of Leopold, Petrich & Smith is to recall 40 years of film history.
Leopold founded the Century City firm in 1954 with the late Gordon E. Youngman, Howard Hughes’ counsel who once ran RKO Studios. At first, the firm specialized in general entertainment law--Leopold handled all the original contracts and leases that led to the creation of Disneyland. (His work is memorialized on the amusement park’s Main Street, where the window of a mock law firm bears the names “Youngman and Leopold”).
The firm’s focus began to change in the mid-1960s, when the idea of malpractice insurance for the entertainment industry was born. Leopold and several other lawyers helped draft the first errors and omissions--or “e and o"--policies, creating an instant market for experts who could assess the risks posed by film and TV projects.
For years, Leopold’s firm worked largely for insurance companies. But as deductibles began to rise--today, they can be as high as $1 million for a movie--and as the cost of producing films skyrocketed, studios increasingly saw the wisdom in vetting their own scripts. Some developed in-house clearance staffs. Others hired Leopold, Petrich & Smith--or other firms--directly, as did some record companies.
Today, the firm’s walls display framed posters of the movies its 12 lawyers have gone to battle over, from “The Sting” (screenwriter Tony Bill was sued for plagiarism) to “Scent of a Woman” (a dispute over who first conceived of remaking the 1974 Italian film “Profumo di Donna.”)
“Shampoo,” the 1975 film starring Warren Beatty and Julie Christie, prompted a suit from a writer who charged--unsuccessfully--that Beatty and screenwriter Robert Towne had stolen his idea.
In 1982, the ex-wife of author John McPhee filed suit alleging that “Shoot the Moon,” starring Albert Finney and Diane Keaton as a couple amid a wrenching divorce, was a portrait of her own domestic strife. (Bo Goldman, the screenwriter, had once been a house guest of McPhee.) The case was settled.
With such cautionary examples, one might expect producers and screenwriters to be quick to heed Leopold’s advice. Alas, he says, that is not always the case.
“I can read a whole 120-page script, and usually the one line I want to change is the one the writer says is the hook without which the story will fall apart,” he said with a smile. He is willing to compromise--to a point.
“We can change names, change the locality, maybe create composite characters” to avoid offending real people, he said. “But I tell people, if you make a motion picture about Sam Slobowski who flew the first solo flight across the Atlantic, that’s not going to fool anybody. Everybody knows that’s Charles Lindbergh.”
Jerry Stahl is an author whose memoir about his heroin addiction, “Permanent Midnight,” is being made into a feature film starring Ben Stiller, Elizabeth Hurley and Janeane Garofalo. Stahl admits that when he was summoned to Leopold’s office to discuss the script, he looked forward to it about as much as an IRS audit.
But Stahl, whose memoir charts his decline from a $5,000-a-week TV writer to a strung-out junkie, was surprised to find himself liking his inquisitor.
“He was protective of both the low-end and high-end characters,” Stahl said of Leopold, who wanted to be sure that the people portrayed on screen would not be angered by what they see. “He would protect the lowliest scamming methadone parking lot drug dealer and the supposedly loftiest TV producer. They were all the same to Fred. He wanted to give them all a fair shake.
“He’s very Solomon-like,” Stahl added. “You know how you sort of imagine that your whole life, God has been watching and somehow you’re going to have to account for everything? It was like Fred was that guy.”
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Risk Management and the Movies
A lawsuit can cost movie studios legal fees or monetary settlements and even halt distribution of a film. That’s why Hollywood relies on clearance experts to vet scripts looking for vulnerabilities that could land them in court.
A CRUSHING BLOW
A L.A. family sued writer-director Alan Shapiro, Morgan Creek Prods. and Warner Bros. alleging that 1993’s “The Crush” libeled their daughter. Plaintiffs noted, among other things, that the movie’s central character, a psychotic killer with an unrequited crush on the man who rents her parents’ guest house, shared their daughter’s first name. Shapiro, who promoted the film as inspired by a real-life experience, lived in the plaintiffs’ guest house in 1982. The suit was eventually settled.
Artist Andrew Leicester sued Warner Bros. in 1995 for copyright infringement, alleging that his public artwork in downtown Los Angeles appeared in “Batman Forever” without his permission. Leicester says the movie’s design team modeled Gotham City on his sculpted courtyard at 8th and Figueroa streets. The case is pending.
FACE TO FACE WITH THE PAST
Writer-director David Mickey Evans grew up playing sandlot baseball with Michael Polydoros. In 1993, “The Sandlot” featured a scrawny, bespectacled boy named “Michael Palledorous.” Polydoros sued Evans and 20th Century Fox for invasion of privacy, noting also that the movie character closely resembled his 4th grade photo. A California Court of Appeals sided with Evans, but the state Supreme Court is reviewing the case.
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Case Study: ‘Air Force One’
Terrorists hijack the president’s plane. But before they do, the folks at de Forest Research--Los Angeles’ oldest fact-checking firm for movies and television--nitpick the script, looking for potential problems:
WHAT FACT-CHECKERS WATCH FOR
Name changes: The U.S. vice president’s (Glenn Close’s character) name was Katherine Chandler until a researcher found two women with that name in the Washington area. The screenwriter picked four new names, but two matched real Washington residents and two others were rejected for not being sufficiently “inside the Beltway.” But then the writer spied the researcher’s name, Kathryn Bennett, on fact-checking materials. Perfect. A character was born.
Beer watch: An early script featured someone dumping a glass of Russian beer and replacing it with Heineken. Researchers warned against identifying a real Russian beer in this derogatory context. As for Heineken, mentioning particular products in a film is generally not a problem, unless the movie airs on television. (What if Coors wanted to buy ad time?). The Heineken was omitted.
555: If a telephone number was to be used, only 100 numbers would do: 555-0100 through 555-0199. Using a working phone number on screen invites trouble. Phone companies keep 100 numbers inactive (plus one toll-free number: 800-555-0199) for Hollywood.