(CN) – Two brothers who say the creators of “The Last Samurai” used their screenplay after rejecting their pitch can sue for breach of contract, but not for copyright infringement, the 9th Circuit ruled Wednesday.
Aaron and Matthew Benay say they pitched their copyrighted screenplay, also titled “The Last Samurai,” to the president at Bedford Falls Production. He allegedly passed on the pitch, saying he had a similar project in development. “The Last Samurai,” starring Tom Cruise, came out in 2003.
The Benays say important aspects of the film copied their screenplay. They sued in December 2005, exactly two years after the movie was released, alleging federal copyright infringement and breach of implied contract under California law, among other claims.
Defendants include Warner Brothers Entertainment, Radar Pictures, Bedford Falls Productions, Edward Zwick, Marshall Herskovitz and John Logan.
A federal judge ruled for the film’s creators on the two claims to survive summary judgment: copyright infringement and breach of contract. The judge acknowledged similarities between the screenplay and movie, but said a closer look at the protectable elements – including plot, theme, dialogue and characters – reveals many more differences than similarities.
Both works are based on “the historically unfounded premise of an American war veteran going to Japan to help the Imperial Army by training it in the methods of modern Western warfare for its fight against a samurai uprising,” according to the 9th Circuit’s ruling.
On appeal, a three-judge panel in Pasadena upheld the judge’s analysis of the infringement claim, but reinstated the contract claim.
“Our holding that the screenplay and the film are not substantially similar for purposes of copyright infringement does not preclude a finding of substantial similarity for purposes of an implied-in-fact contract under California law,” Judge William Fletcher wrote for the Pasadena-based panel.
The court reversed dismissal of the contract claim and remanded.
“We leave to the district court … the task of determining whether there was unauthorized use by defendants of elements or ideas from the Benay’s screenplay,” Fletcher wrote.
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