I admit that the title of this article may be a bit deceiving.  Making films, like any other production of art, is almost always an act of free speech.  However, the Ninth Circuit was recently faced with a dilemma of determining this issue in connection with an anti-SLAPP motion brought against a screen writer who claimed that the defendants had failed to pay him for using his idea to make the film, The PurgeJames Kachmar 08_web

Douglas Jordan-Benel, a writer, wrote a screenplay he titled, Settlers Day, which described an annual, state-sponsored 24-hour period in which citizens were allowed to commit any crime without legal ramifications.  Jordan-Benel registered his screenplay with the Writers Guild of America and the U.S. Copyright Office.  Shortly after writing the screenplay, his manager emailed the United Talent Agency (“UTA”) about the screenplay.  After receiving permission, the screenplay was submitted to UTA for review.  A few days later, UTA notified Jordan-Benel’s manager that they had read the screenplay and were going to “pass.”  However, someone at UTA apparently forwarded the screenplay to another client and he and a partner later wrote a screenplay that they called, The Purge; which Jordan-Benel later alleged stole ideas from his screenplay.  The Purge movie was released in 2013 and produced by Universal City Studios, LLC.

Jordan-Benel later sued and alleged copyright infringement and that certain defendants were liable for breach of an implied in fact contract based on his submission of his Settlers Day script.  The defendants filed an anti-SLAPP motion seeking to have the breach of contract claim dismissed claiming that it arose “from an act in furtherance of [their] rights of petition or free speech …”.  The District Court denied the motion finding that Jordan-Benel’s breach of the implied contract claim was not based on the making of the film per se; but rather, on defendants’ failure to pay for the use of his ideas in making the film.  Therefore, the anti-SLAPP statute did not apply because the claim was not based on protected activity.  The defendants appealed this decision to the Ninth Circuit.

In Jordan-Benel v. Universal City Studios, et al., (June 20, 2017), the Ninth Circuit began by recognizing that California’s anti-SLAPP statute only applies to “a cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech“ under the California and/or U.S. Constitutions.  It noted that California had enacted the anti-SLAPP statute “to deter lawsuits [intended to]`primarily to chill the valid exercise of the constitutional rights of freedom of speech’.”  In essence, a defendant must first show that the plaintiff’s claim arises from an act in furtherance of the defendant’s free speech rights and if such showing is made, then the burden shifts to the plaintiff to show that they have probability of prevailing on their claim.  Here, the defendants claimed in their anti-SLAPP motion that Jordan-Benel’s claim for breach of contract arose from the creation, production, distribution and content of The Purge film. Thus, since such conduct was protected under anti-SLAPP, the Court should have dismissed Jordan-Benel’s contract claim.

The Ninth Circuit concluded that the district court properly denied the anti-SLAPP motion.  It focused its inquiry on two related questions: “(1) From what conduct does the claim arise? and (2) Is that conduct in furtherance of the rights of petition or free speech?”  The Ninth Circuit noted that the California Supreme Court has explained: “that a cause of action arguably may have been `triggered’ by protected activity does not entail that it is one arising from such … [T]he critical consideration is whether the cause of action is based on the defendant’s protected free speech or petitioning activity.”  That is, even though engaging in a protected activity may be related to plaintiff’s complaint that does not necessarily mean that the complaint is arising from such protected activity thereby triggering the anti-SLAPP statute.

The Ninth Circuit continued by stating that it would focus on the specific act of wrongdoing” that was challenged by the plaintiff.  It recognized that California has allowed breach of implied in fact contract claims like Jordan-Benel’s and requires a plaintiff to allege the following: “(1) He submitted the screenplay for sale to the defendants; (2) he conditioned the use of the screenplay on payment; (3) the defendants knew or should have known of the condition; (4) the defendants voluntarily accepted the screenplay; (5) the defendants actually used the screenplay; and (6) the screenplay had value.”  In essence, this claim is not necessarily an “idea theft” cause of action but rather one of an “implied promise to pay the reasonable value of the material disclosed.”  In applying this analysis to Jordan-Benel’s claims, it concluded that he was not suing due solely to the fact that defendants made The Purge film; but rather, that they failed to pay him for the use of his screenplay ideas.  Thus, the Ninth Circuit concluded that the district court properly held that he anti-SLAPP statute did not apply to Jordan-Benel’s contract claim.

The Ninth Circuit went further and rejected the defendants’ claim that the Court should apply a broader “but for” analysis.  In essence, the defendants urged the Court to apply the anti-SLAPP statute by arguing that Jordan-Benel would have no claim against them “but for” their making of The Purge film.  Although the Ninth Circuit recognized that the anti-SLAPP statute is to be construed broadly, it could find no legal authority for the proposition that it was intended to apply when protected activity is not the target of the claim as here.

The Ninth Circuit concluded that the defendants’ alleged failure to pay for the use of the plaintiff’s ideas in making of The Purge film was not conduct that was in furtherance of their right of free speech.  Thus, it affirmed the district court’s denial of the anti-SLAPP motion.


James Kachmar is a shareholder in Weintraub Tobin Chediak Coleman Grodin’s litigation section.  He represents corporate and individual clients in both state and federal courts in various business litigation matters, including trade secret misappropriation, unfair business competition, stockholder disputes, and intellectual property disputes.  For additional articles on intellectual property issues, please visit Weintraub’s law blog at www.theiplawblog.com