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9th Circuit Mulls Jury Trial for ‘Avatar’ Case

PASADENA, Calif. (CN) - The 9th Circuit Wednesday appeared receptive to allowing a jury to decide claims that James Cameron stole the idea for his blockbuster movie "Avatar" from another writer.

Retired Vietnam veteran and visual-effects artist Gerald Morawski of Wisconsin sued Cameron and his production company Lightstorm Entertainment in Federal Court in 2013.

Morawski claims that Cameron had heard his pitch for his story "Guardians of Eden" in 1991, and a few years later wrote an outline for "Avatar."

Budgeted at more than $230 million, the 2009 sci-fi blockbuster became the highest grossing movie of all time and won three Academy Awards, for cinematography, art direction and visual effects.

Five other complaints alleging copyright infringement or other counts were filed after the movie's phenomenal success. All were dismissed.

After the hearing on Wednesday, Morawski's attorney Peter W. Ross said he was confident that the 9th Circuit would revive a case that once looked dead and buried.

"A writer has to be given the opportunity to present to the jury his case, particularly when we have facts where the writer in question submitted his movie pitch to Cameron," Ross said after he argued the case.

Morawski, now 68, claimed elements in Avatar were "nearly identical" to those he pitched to Cameron during two 1991 meetings at Lightstorm's offices in Santa Monica. He said he met Cameron after selling the filmmaker reproduction rights to four pieces of artwork.

Before the pitch meeting, Morawski says, Lightstorm insisted he sign a confidentiality and non-disclosure agreement. After some toing and froing, Lightstorm allegedly amended the document so that Morawski would retain all rights to his project.

Morawski said he pitched "Guardians of Eden" as an "epic struggle" that "takes place between evil mining interests, who would destroy the planet to satisfy their greed" and an indigenous forest tribe.

As in "Avatar," Morawski said, his story's protagonist would be a "military veteran," who, while not wheelchair-bound, was suffering from a debilitating illness.

Morawski claims he met with Cameron for two pitch meetings in December 1991.

Though the project interested Lightstorm, and Cameron agreed to loan the writer $5,000 to cover his living expenses, they passed on the project, Morawski said. "Guardians of Eden" was never produced.

Four years later, Cameron wrote an extended outline for "Avatar," and completed the first draft of the project in 2006, according to court records.

Since ideas are not copyrightable, Morawski did not make a claim for copyright infringement. Instead, he alleged breach of an express contract, breach of an implied-in-fact contract, fraud, and negligent misrepresentation.

U.S. District Judge Margaret Morrow shot down his claims in a Jan. 31, 2013 ruling .

Morrow found that Cameron had shown that he "independently created" his blockbuster, drawing on his 1978 materials for his short film "Xenogenesi;" unproduced short film script for "Chrysalis;" a treatment for another project called "Mother;" and the unproduced screenplay "Wind Warriors."

Cameron added that he had been inspired by his work as a screenwriter on the "Rambo II" movie and the story of Pocahontas.

Morrow agreed, and granted Cameron's motion for summary judgment. Morawski appealed to the 9 th Circuit .

At the Wednesday hearing, attorney Ross said the court should reverse Morrow's ruling because Morawski established that Cameron had access to his client's idea and that "Avatar" and "Guardians of Eden" are substantially similar.

Since it was essentially Cameron's word against Morawski's, a jury should decide the case, Ross said.

Ross told the panel that he had six independent witnesses who had heard Morawski practice his pitch, which "sounded an awful lot like 'Avatar.'"

"We have notes that confirm the elements of these pitches and we have a letter that confirms a movie deal," Ross said.

But Cameron's attorney Robert H. Rotstein said it was clear Cameron had started creating "Avatar" as an 11th grader, drawing pictures for homework that eventually found their way into the story.

"The evidence of prior creation is all of 'Avatar,'" Rotstein said. "If you take 'Xenogenesi,' you have blue-skinned humanoids. You have the concept of a sentient planet and you have the concept of a neural network.

"We're talking about the creation of the entire movie, not just cherry-picking elements."

Judge Morgan Christen said: "It's compelling, but we're at summary judgment. It's not like they have nothing. Why is it not a jury question?"

Judge David B. Sentelle and Judge Andrew D. Hurwitz were preoccupied with the same issue.

"You say: 'There's an inference over on this side, there's evidence on the other side.' Let the jury do its job and decide the evidence," Sentelle said.

Rotstein replied that the doctrine of independent creation defeated Morawski's claims and warranted summary judgment.

"All they're arguing is timing, and similarity and lack of credibility. All the cases say you can't do that to rebut the inference of independent creation," Rotstein said.

After the hearing, Ross said Morawski had been "waiting a long time for justice" and that a jury trial would be the "just result."

He said Cameron had mentioned "Guardians of Eden" in what the attorney described as a to-do list "right next to his notes about Avatar."

"Sounds like something the jury is going to have to decide," Ross said.

Rotstein declined to comment for this article.

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