1709 Blog: for all the copyright community

Friday, 7 May 2010

Nine Miles Down

French heart-throb Olivier Martinez recently split up with model Rosie Huntington-Whiteley – his exes also include Mira Sorvino, Angelina Jolie and Kylie... Some relationships don’t last. But others, they never really get off the ground.

In March 2006 film director Anthony Waller was desperately trying to woo Martinez – to be lead actor in his film Nine Miles Down. But things didn’t work out and the film ground to a halt. That wouldn’t have mattered except they were already one day into filming with production services company One Step Beyond in place in Namibia. The production company, NMD (UK) Ltd, failed to pay One Step Beyond and subsequently went into liquidation. Its only asset: the screenplay. The screenplay, co-written by Waller, had been sold by Waller’s company Stonewood to NMD in a contract drafted by LA entertainment lawyer Peter Hoffman.

The makers of Nine Miles Down were not to be dissuaded and the film went on to be made by Hoffman’s daughter’s company, Gone to Hell Ltd (GTH). However, the liquidator of NMD was not going to let NMD’s sole asset slip through his fingers and last week Peter Smith J held that the GTH had infringed NMD’s copyright by making the film using the screenplay.

The respondents had tried a succession of arguments: NMD’s licence, in spite of being exclusive, was only for that particular production, so didn’t preclude a parallel licence … the licence was void as Stonewood never owned the rights (rather they belonged to Stone & Stone, a company registered in Curaçao, Waller being its ultimate beneficial owner ‘perhaps behind an offshore trust’) … the licence ‘was not intended to be legally binding and was merely a document that was being peddled around the world to obtain funding’. Smith J was having none of it. In fact he thought the badly drafted document was probably a partial assignment.

To make matters worse, in order to secure finance for the second attempt at Nine Miles Down, documents backdated to before the liquidation were forged terminating NMD’s licence, assigning NMD’s rights and waiving claims against GTH. When it became evident that these documents were forged, the respondents attempted to persuade the judge that NMD’s screenplay licence had been varied by an oral agreement. ‘Thus,’ Smith J explained, ‘they moved on from the creation of false documents to telling lies before me.’ Even if there had been an oral agreement, he said, it was unenforceable as there was no consideration for NMD varying its rights.

Anyway, what’s the film like? The website sums it up: ‘Nine Miles Down can best be described as a “thinking man’s scary movie”. It will tease the gullibility of the audience while exploring the consequences of abandoning logic and reason for ancient fears and superstitions.’

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