Another Author Challenges Spielberg

The way he tells it, Stephen Kessler was raised in the heart of Tornado Alley--a stretch of Missouri where “every spring, super cell clouds explode across brilliant blue skies” and children huddle under school desks when tornado warning sirens wail.

“I have lived through floods, seen windstorms rip massive oaks from the earth and the devastation caused by tornadoes firsthand,” Kessler recalled in a court affidavit. “Here nature can be sudden death. Inexplicable. Cruel. One home destroyed, the next untouched. Some live and some die. No rhyme or reason . . . “

Indeed, it was a personal sense of loss--the untimely deaths of three loved ones, unrelated to tornadoes--that Kessler said compelled him in 1989 to write a screenplay about tornado chasers titled “Catch the Wind.”

Today, Kessler, a 45-year-old composer-dramatist-filmmaker from Kirkwood, Mo., is waging a $50-million copyright infringement suit against Oscar-winning director Steven Spielberg, best-selling author Michael Crichton and others, claiming that substantial elements of his screenplay found their way into the 1996 blockbuster Warner Bros. film “Twister.”

Named as defendants are Spielberg, who is credited as an executive producer on the film; Spielberg’s production company, Amblin Entertainment; Crichton and his wife, Anne-Marie Martin, who are credited as co-writers of “Twister”; and two studios that jointly financed the film, Warner Bros. and Universal.

On Dec. 4, U.S. District Judge E. Richard Webber in St. Louis issued a ruling in which he refused to grant a defense motion for summary judgment that would have ended the case before trial.

“On the record before it, this court finds that after a comparison of the two works, the similarities between them are substantial and cannot be considered inconsequential,” the judge wrote. He also found that there remained “genuine issues of material fact” that warranted his not dismissing the case before a trial.

The suit, which is scheduled to go to trial Jan. 7, places Spielberg, director of “Schindler’s List” and “Jurassic Park,” at the center of a second high-profile plagiarism case now in the federal courts.

Spielberg is also battling allegations in Los Angeles that his newest film, “Amistad,” was taken from a 1989 book called “Echo of Lions” by author Barbara Chase-Riboud. In that case, a federal judge refused to prevent Spielberg’s company, DreamWorks SKG, from releasing the movie, noting that the author had not established a probability of success should the case go to trial. The lawsuit is continuing, however.

In the “Twister” case, Kessler attorney Mitch Margo of St. Louis alleges that the film starring Bill Paxton and Helen Hunt contained numerous similarities in story line, action, sub-plots, dialogue and scenes with Kessler’s “Catch the Wind.” Among them:

* The central characters are obsessed with the death of loved ones in a tornado.

* Competing teams of tornado chasers race to see which team can reach a twister first.

* The central characters go on quests to collect scientific data on twisters using devices they place in the path of approaching funnel clouds. Kessler calls his device “Toto II.” Crichton and Martin call their device “Dorothy.” Both names refer to a device called “Toto,” which real-life scientists developed in the early 1980s and named after the dog in the granddaddy of tornado movies, “The Wizard of Oz.”

* Each script contains a love triangle in which the third interest is a female therapist.

Michael Eidel, a Los Angeles attorney representing the defendants, declined to comment on the litigation, but the defense has filed detailed arguments outlining its case.

The defendants contend that not only are the two scripts substantially different, but the story of Midwest tornado chasers is an idea rooted in fact and thus is unprotectable under the law. They point out that many of the characters and scenes in both works result from the choice of setting or situation.

“Where, other than in Tornado Alley, would a story about tornadoes be set?” the defendants asked in court documents, adding: “Kessler cannot monopolize the basic story of tornado chase teams seeking to place scientific instruments in the path of tornadoes. As a matter of settled copyright law, anyone is free to make use of such general themes and ideas with impunity.”

What’s more, the defendants argue, several years before Kessler began writing “Catch the Wind,” two other writers, Michael Lessac and Robert Litz, wrote a screenplay titled “Twister” about two tornado chasers who sought to deploy a scientific instrument pack called “Toto” in the path of oncoming tornadoes. Their story also had a romantic triangle.

The defendants said they were not suggesting that Kessler had plagiarized the other screenplay, only that two profoundly different stories could have such similarities because of the “common theme of tornado chasing.”

Kessler’s attorney agreed that a topic such as tornado chasing can cause certain ideas to overlap.

“If you look at Lessac and Litz and other tornado-chasing scripts that existed in the last 10 years, some of them overlap with regard to a few story points,” Margo said, “but when you look at [Crichton/Martin’s] ‘Twister’ and ‘Catch the Wind,’ they consistently overlap from the first important story point to the last.”

Kessler began writing his screenplay in the fall of 1989 and took “Catch the Wind” to Los Angeles on numerous occasions through 1993 seeking to sell the script. He enlisted a Midwest theater chain owner named Julian Jablonow as his agent and together they went to Los Angeles, meeting with high-level executives at Warner Bros., Universal and Creative Artists Agency, which represented Spielberg and Crichton. They also sent the script to other Hollywood studios and production companies, including Amblin.

Crichton and Martin maintain that they wrote their screenplay during the first nine months of 1994. In legal papers filed in the case, defense attorneys contend the husband and wife “wrote the ‘Twister’ screenplay in isolation” and add that they only heard about Kessler’s screenplay after he filed suit.”

Crichton is a publishing factory. He has written more than two dozen books, including 11 bestsellers, and 15 screenplays, and he developed the hit NBC drama “ER.”

Randolph D. Pope, an expert on comparative literature at Washington University in St. Louis who was hired by the plaintiffs to examine drafts of both screenplays, said a comparison led him to “believe without a doubt that the movie ‘Twister’ is based on Kessler’s.”