Trail of ... failure to attribute

Chalfant v. Tubb, --- F.Supp.2d ----, 2006 WL 2524242 (N.D. Okla.)

Plaintiffs Chalfant and Preston alleged that defendants used a screenplay they wrote to make a film, Blood Trail. In 1995, Defendant Tubb told plaintiffs that he wanted to use the screenplay for his film, but stated that contractual details could be worked out after the film was produced. After some contentious negotiations, plaintiffs allegedly agreed that Preston would have control over film rights, but both would get screenwriting credit. Preston allowed Tubb to begin production without a written contract, but with an oral agreement that he’d execute a contract once the film was produced and had a distributor. Preston worked as an actor in the film.

In August 2004, Tubb filed for registration of the copyrights for the screenplay of Blood Trail and the film itself. Tubb listed Preston as a coauthor, but failed to mention Chalfant. The application did not note that the screenplay for Blood Trail was a derivative work of the 1995 screenplay. The registrations issued.

Tubb did not notify plaintiffs that he had received registrations, but he did begin marketing and distributing the film. The DVD is now commercially available – though the reviews indicate that, even with Profit’s Adrian Pasdar in it, it’s not worth watching.

Plaintiffs claim that the final version contains large segments of dialogue lifted directly from the original screenplay, as well as the same characters and events taken from the original work. They’ve never been paid. The DVD states that the screenplay was coauthored by Tubb and Preston. They sued for copyright infringement, various state-law torts, unfair competition (state and federal), and breach of contract.

Unsurprisingly, the copyright claims survived a motion to dismiss, even though Preston participated in the creation of the film. Plaintiffs allege that Tubb only had a limited license, and that he failed to meet the conditions of that license.

Of somewhat more interest is the post-Dastar result on the unfair competition claims. Plaintiffs alleged that defendants intentionally omitted Chalfant’s name as a coauthor of the derivative screenplay and film. They argued that Dastar didn’t preclude this claim because it left open the possibility of false advertising/attribution cases. The court disagreed, since the complaint didn’t allege any consumer harm from being misled as to the film’s authorship, only harm to Chalfant.

The interesting twist is that the court then held that plaintiffs’ state law statutory and common law unfair competition claims weren’t preempted, even though it would seem a logical application of Dastar to so hold. Under the reasoning of Dastar, conflict preemption would seem appropriate. Maybe even express preemption, since “failure to attribute” doesn’t seem like the extra element required to avoid express preemption, even if that failure allegedly produces consumer harm. The court reasoned that the state law tort requires plaintiffs to prove that defendants engaged in deception for the purposes of misleading a consumer about the identity of the producer of goods or services; simple misappropriation isn’t good enough. But that description sounds like a narrowing of the class of actionable behavior based on intent, and, as the court notes when dismissing plaintiffs’ claim for tortious interference with business expectations, copyright preemption doctrine generally holds that state claims that make a defendant liable for copying plus some level of intent are preempted. The court was unable to cite post-Dastar cases supporting its interpretation that state-law false advertising claims based solely on failure to attribute survive preemption, but then there aren’t all that many that deal with false advertising.

More solidly, the state-law claims for defrauding the plaintiffs and for breach of contract also survived.