Fox tries to save the world, script and release date

Call it: The Clash of the Hollywood Titans as 20th Century Fox heads into court against Sony Pictures Entertainment.

At stake? Whose superhero movie will rule the month of May, which is traditionally one of the biggest months at the box office.

It all began when Fox announced plans to release “X3,” the third installment in its blockbuster comic book superheroes action series “X-Men,” on May 26, 2006. Meanwhile, Sony decided to put “Zoom,” its own comic book superheroes movie, in theaters on May 12.

Now, Fox and Marvel Enterprises, the creator of the “X-Men” comic books, have filed a federal court lawsuit claiming that “Zoom” infringes on the copyrights of “X-Men,” a franchise that has grossed $700 million worldwide. Fox’s legal assault against a rival movie studio for copyright infringement is rare, experts say.

The suit, filed June 20 in U.S. District Court in Los Angeles, aims to keep Sony and “Zoom” producer Revolution Studios from marketing and distributing their movie in a way that piggybacks off the success of the “X-Men” comics and films.

The suit contends that Sony and Revolution intended to release “Zoom” in August 2006 but moved up the date after Fox announced its “X3” plans.

“ ‘Zoom’s’ release in May 2006 immediately before the release of ‘X3’ is an unfair attempt by Sony and Revolution to manipulate the market and trade off the time, energy, resources and effort Marvel and Fox have invested in ‘X-Men,’ ” the suit states.

Already, attorneys on both side are launching verbal salvos trying to undercut the legal claims of their opposition. Bert Fields, defending Sony and Revolution, called the allegations “absolutely off the rails.”

“These two pictures are totally different,” Fields said. “[‘X-Men’] is a dark, frightening picture about mutant wars and [‘Zoom’] is a lighthearted comedy with Tim Allen and Chevy Chase and has a totally different story.”

Fields, a partner at the law firm Greenberg, Glusker, Fields, Claiman & Machtinger, also said Sony’s decision to release “Zoom” so close to “X3” is merely a case of “healthy competition.”

“I have never seen a studio sue another over placing a movie near their competitor’s picture,” Fields said. “Every studio places their pictures in order to get the best of their competition. That is what America is all about. No court in the world would say there’s something wrong.”

But Robert B. Cohen, executive vice president of legal affairs at Fox, rebuts the dark-versus-comedy argument put forward by Fields.

“You can’t steal someone’s literary property, change the tone and then pretend you never stole the key underlying elements of the property,” Cohen said. “Does anyone seriously think that Fox could go ahead and make ‘Spider-Man, The Comedy’ without Sony objecting?”

Pierce O’Donnell, who represented Metro-Goldwyn-Mayer in 1998 when MGM went to court and successfully blocked Sony from developing a James Bond film, said the U.S. 9th Circuit Court of Appeals has a strict test to prove copyright infringement.

“If you don’t have [substantial similarities] of character or plot or dialogue or unique setting, then you don’t have a lawsuit,” he said.

Clark B. Siegel, a partner at Irell & Manella LLP, who co-chairs the Century City law firm’s intellectual property group, said the suit underscores the importance studios attach to choosing release dates for their big franchise films.

“Obviously, [Fox] wants to be the first picture out,” Siegel said. “They don’t want this other picture out two weeks before. If [‘Zoom’] came out in late August, they wouldn’t care as much. It wouldn’t have stolen their thunder.”

Marty Kaplan, associate dean of USC’s Annenberg School for Communication, said studios “always play games of chicken with one another over release dates.”

“It’s a little bit like staking a claim on gold mining land,” he said. “They announce these release dates in a way that tropical birds ruffle their plumage in order to keep their competitors from saying, ‘No, this is mine.’ ”

In many cases, Kaplan noted, the studios will select a release date for their biggest franchise films even before the film is in the can. “Zoom,” for instance, doesn’t begin shooting in Toronto until July 11, while principle photography on “X3” won’t begin in Vancouver until August.

The lawsuit, filed on behalf of Fox and Marvel by attorney Robert Boldt of the L.A. law firm Kirkland & Ellis LLP, states that Fox has invested “hundreds of millions of dollars” in developing, producing and marketing “X-Men” and its sequels.

The studio has hired Brett Ratner of “Rush Hour” fame to direct the picture, which stars an ensemble of top actors playing various comic book roles. They include Halle Berry as “Storm,” Hugh Jackman as “Wolverine,” Famke Janssen as “Phoenix,” Ian McKellen as “Magneto,” Rebecca Romijn as “Mystique” and Patrick Stewart as “Professor Charles Xavier.” In this sequel, Kelsey Grammer has come on board as a character named “Beast.”

In “Zoom,” Allen plays a former superhero named Jack who is called back to work to transform an unlikely group of ragtag kids into superheroes at a private academy. The film co-stars Chase and Courteney Cox.

According to the suit, though “Zoom” is based on the book “Amazing Adventures From Zoom’s Academy” by Jason Lethcoe and three related “Zoom” comic books, the actual script is not only quite a departure from the books but also very much like the X-Men movies and comics.

Fox first took notice of the “Zoom” project last summer when studio officials noticed that Revolution was going to be making a movie based on a book about superheroes. Cohen sent a letter to Revolution warning them not to infringe on the “X-Men” franchise, but the studio says Revolution never replied.

In May, Fox executives managed to get a 98-page “Zoom” script, and the feathers began flying. Cohen sent a letter May 25 to Sony and Revolution demanding that they stop development.

The suit cites numerous similarities between the “Zoom” script and the X-Men franchise. In the book, the suit notes, the superheroes of “Zoom” attend a school on an imaginary island in the sky. But in the “Zoom” script, like in “X-Men,” the superheroes are trained in underground facilities -- the “Zoom” kids are taught at “Area 52,” a secret military installation inside a New Mexico mountain, while “X-Men” students get their training beneath an institute in New York.

Fox’s Cohen said Revolution made a number of very late cosmetic changes to the script that did not remove the key similarities.

“Both properties continue to have kids who are stigmatized because they have particular superpowers, who are led by a mentor on missions in a flying vehicle to save the world, based on intensive training they received in a special school with a room that simulates live combat,” he said.

Fields scoffed at the comparison. “They make a big point that both facilities are underground,” he said. “How many pictures [of this genre] have underground facilities? It’s not a protectable idea.” Besides, he noted, in the “Zoom” script, the facility is in the side of a mountain in New Mexico, not in New York.

But Cohen said, “It is silly for Revolution to suggest that ‘Zoom’ is now different because, for example, the X-Men school is underground, whereas the Zoom school has been moved from an ‘underground’ location to one that is ‘under the ground of a mountain.’ ”

Fields said the “Zoom” script is “still a work in progress.”