OAKLAND, Calif. (CN) — Jurors will soon determine the outcome of a trial over whether or not Disney benefited from a San Francisco tech company’s facial motion-capture technology to create the lead character in the 2017 film “Beauty and the Beast.”
Rearden MOVA says another company, DD3, made unauthorized copies of its MOVA Contour software, which were used to create Beast for the live-action film.
Disney denies that DD3 infringed upon any copyright owned by Rearden, and further claims that The Mouse is not vicariously liable for any infringement.
Both sides wrapped closing arguments on Tuesday after hearing testimony from several Disney witnesses.
Rearden attorney Mark Carlson reminded the jury of Rearden’s claims that the MOVA tech was taken by a former employee, Greg LaSalle, and used by DD3, while Disney benefited from the stolen software. Rearden continues to pay taxes and legal fees for pending patents on MOVA Contour assets, he argued, proving it owns those assets.
Carlson said Disney clearly used MOVA software for the Beast character and had the practical ability to control DD3’s use of it, yet did not pay Rearden.
“Disney got to use the MOVA Contour and did not have to pay one dime to use it,” he said. “Disney just never considers the copyrights of others to be important.”
As a result, he said, the copyright infringement that a judge found DD3 to have committed using MOVA “was done on their watch.”
Disney’s attorney John Spiegel said the animation giant can't be found liable for copyright infringement by DD3, which was enjoined in 2017 for using MOVA. He said the jury must decide if Disney had done everything it could to ensure DD3 had the license to use MOVA.
“Rearden says Disney should have done some sort of due diligence on all its vendors,” Spiegel said, calling it a “fundamental flaw” in Rearden’s case, because DD3 signed Disney’s agreement representing that it in fact had a license to use MOVA. For Disney then to call DD3 asking the company to promise it had the rights to MOVA would have been, he argued, "unrealistic" and "impractical."
Disney on Tuesday filed a motion for judgment as a matter of law, having begun its case last week.
Kristie Kershaw, CEO of entertainment advertising company Fanthropology, testified Monday that nostalgia for the 1991 animated film “Beauty and the Beast” was used to drive a $100 million advertising campaign for the remake.
In studies of what people were talking about ahead of the film, Kershaw said her company found that MOVA was mentioned in .0002% of search results, meaning the movie's success did not turn on its use of MOVA technology.
“The Beast is one character in a large ensemble film that has a big history,” Kershaw said. “There’s just so many other factors for why people were so invested in this film and excited to go see it.”
Robert Wunderlich, a financial consultant and the former mayor of Beverly Hills, testified Tuesday that Disney’s net profits from the film totaled less than $300 million, despite it grossing more than $1 billion worldwide.
Wunderlich said Rearden’s financial expert improperly calculated Disney’s production overhead for the film when calculating losses due to Rearden. He said if Rearden prevails on its liability claim then it is owed up to $676,000 for drawing 2.5% of the film’s audience.
“Separate from the creative elements of the film, Disney itself brings a lot to the profitability of it,” Wunderlich said.
Rearden brought back consultant Philip Fier as a rebuttal witness. Fier estimated that Rearden is due damages of profit loss of $38 million from the film's profits totaling $426 million, from the use of MOVA. He contested Wunderlich’s use of audit records which he said don't accurately calculate Disney’s overhead.
With U.S. District Judge Jon Tigar, an Obama appointee, presiding, jurors must weigh factors of copyright novelty and ownership. Both sides have been at odds over evidence, and with the holidays approaching, Tigar said Monday he was growing concerned about how long the trial could drag on.
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