Avatar Wins Against Another Copyright Owner… in an Unusual Manner

by Dorsey & Whitney LLP

“When I was lying there in the VA hospital, with a big hole blown through the middle of my life I started having these dreams of flying, I was free.  Sooner or later though, you always have to wake up.”  – Jake Sully, Avatar.

A recent decision from the California Court of Appeal, Fourth Appellate District, ended the hopes and dreams of a copyright owner from receiving a share of the $2.8 billion earned by James Cameron’s Avatar film.  In this particular case, the California Court of Appeal dismissed  the breach of contract and fraud claims asserted by plaintiff/respondent Kelly Van after James Cameron and the other named defendants filed a special motion to strike pursuant to an anti-SLAPP statute.

Van wrote the book “Shelia the Warrior; the Damned” in 2003.  In May 2010, Van filed a copyright infringement action against the defendants, alleging that James Cameron’s Avatar copied ideas and expressions contained in “Shelia the Warrior.”

According to the complaint filed in the present case in 2015, Van and the defendants engaged in settlement negotiations after the 2010 action was filed.  During the negotiations, the defendants allegedly “promised to pay [Van]… at least 500,000.00 [dollars] plus one half percent of total box office revenue in monthly royalties.”

Much like Jake Sully before he found himself in the VA hospital, Van must have thought that life was great.  However, also like Jake Sully, a big hole was blown through the middle of Van’s life.

After the alleged settlement negotiations concluded, the defendants dismissed the 2010 copyright infringement suit.  According to the complaint in the present case, in order “[t]o cover up their bad faith dealings in reneging on payment, [the defendants allegedly] concealed [the] oral contract with [Van], prepared fictitious evidence regarding a ‘scriptment’, prepared [a] fraudulent motion and submitted all to the court.”

In response, Van had dreams of flying.  In January 2015, Van brought claims for breach of contract and fraud against the defendants.  However, Van had to wake up.  The defendants filed a special motion to strike pursuant to the anti-SLAPP statute.  The trial court granted the defendant’s motion, noting that Van did not demonstrate a probability of prevailing on either the breach of contract or fraud claims, since Van could present no admissible evidence.  Additionally, the trial court awarded the defendants their attorney’s fees of $24,815.75.

The California Court of Appeal upheld the trial court’s ruling, noting that Van had failed to rebut the trial court’s presumption of correctness.  In particular, the California Court of Appeal stated that “[t]he arguments in Van’s brief are not adequately presented in that they are largely incomprehensible and/or not legally cognizable.”

As Colonel Quaritch said, “[y]ou are not in Kansas anymore.  You are on Pandora, ladies and gentlemen.  Respect that fact every second of every day.”  The present case illustrates the sometimes cutthroat nature of the legal world.  Assuming Van’s allegations are correct, Van lost an estimated $15 million due to failure to memorialize in written form the oral promises made by the defendants in the settlement negotiations.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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