Next week (Sept. 16, to be exact), toy giant Hasbro and production company Sweetpea Entertainment will head to court in the hopes of settling once and for all who's got the D&D rights, and who can therefore sell those rights to a major studio to begin production on a new Dungeons & Dragons film. The results of the trial, though, may determine much more than the owner of the rights. It could also give us a new definition of copyright infringement in Hollywood, and change what production companies and studios call a "sequel."
The events that led to this dispute began three years ago, when Jon Berg of Warner Bros. tasked Wrath of the Titans writer David Leslie Johnson with drafting a Dungeons & Dragons screenplay, which is a little weird given that Warners did not actually own the D&D rights at the time. When Johnson's script, titled Chainmail, started getting a positive response from inside Warner Bros. the following year, Berg started pursuing the rights to make a D&D film, which eventually took the studio to the door of Hasbro.
Berg and fellow WB executive Jun Oh made progress with Hasbro, but were told the rights were "complicated." For instance, they apparently could use the phrase "Dungeons & Dragons" only as a subtitle, and the phrase had to be displayed at only half the size of the film's eventual main title. Things got weirder when Berg was contacted by Joel Silver's production company and told that Silver already had the D&D movie rights. Despite that odd bit of information, Warner Bros. pushed ahead with buying the rights from Hasbro, offering $5 million and five percent of Chainmail's eventual gross. Then everything changed when, in November 2012, Universal Pictures bought the rights from Hasbro from under Warner Bros.' nose.
Berg wasn't happy, but he also wasn't done trying to get Chainmail made. With Hasbro's apparent D&D rights now in Universal's hands, Berg and Warner Bros. turned back to Joel Silver's company, Silver Pictures, and Sweetpea head Courtney Solomon. Sweetpea and Solomon claimed that they still had the D&D rights, and could sell them to Warners. By 2013, Sweetpea had already produced the theatrically released Dungeons & Dragons (2000), and the TV films Dungeons & Dragons: Wrath of the Dragon God (2005) and Dungeons and Dragons: The Book of Vile Darkness (2012), and thus believed they still had the right to make more films, or transfer those rights to another studio. Hasbro, believing the rights had since reverted back to them, sued Sweetpea in the spring of 2013, claiming, among other things, "contributory copyright infringement." But how could Hasbro sue Sweetpea over the D&D rights when Sweetpea had just released a film based on the property the year before? Well, that's where it gets even more complicated.
See, Sweetpea initially bought the D&D film option from a Hasbro subisidiary in 1991, then exercised that option in 1994. By 1997, though principal photography had started, a film hadn't been finished, and in 1998 Hasbro sued Sweetpea for not getting a movie made fast enough. The two companies eventually came to an agreement which, according to The Hollywood Reporter, "allowed Sweetpea to go forward with its film — and then have five years to begin work on any sequel." The first film Sweetpea produced was released theatrically (with Silver as an executive producer) but bombed at the box office, making another theatrical release difficult, hence the subsequent TV movies. Hasbro's argument is that, under the terms of the 1998 agreement with Sweetpea, those two TV movies don't actually qualify as sequels, in part because the third film does not share the same plot or characters, but also because the five years the company initially allowed Sweetpea to make a sequel was intended to apply to theatrical releases.
"It is unheard of for the producer to have the right to retroactively extend its theatrical motion production rights by starting production of a television motion picture," the company said in a trial brief.
Sweetpea's counterargument to this claim is that they originally intended to make the third D&D film a theatrical release, and that its $2.5 million budget (big for TV), original intended nudity and submission to the MPAA for rating all prove this. The company also contends that Hasbro had input on the film and never once raised objection to Sweetpea either producing it or releasing it via television. So among the things the court must settle is what in this case actually amounts to a "sequel," and the ruling could set a precedent for future rights arguments.
But that's not the only issue at stake here that could have wide-reaching implications for Hollywood. Last February, a U.S. district judge ruled that Warner Bros.' Chainmail script is a violation of the Copyright Act "even in the absence of a final script or film." Warner Bros. is not actually being sued by Hasbro, but the judge ruled that the script violated Hasbro's rights and constituted "intermediate copying" as part of determining whether Sweetpea was contributing to copyright infringement by working with Warners on the project. With this ruling on the script in mind, the issue isn't just whether Sweetpea was participating in a D&D film when they had no right to do so, but whether developing a script to a property you don't own is copyright infringement even if that script is never made public and you eventually intend to buy the rights. So, depending on how this case works out, Marvel could hypothetically be in hot water for writing a Spider-Man film script and keeping it in a drawer while Sony still holds the Spider-Man film rights. That's an interesting thought.
We'll wait and see how the court rules on this case, and how that ruling will affect the way studios deal with intellectual property in the future. In the meantime, Warner Bros. isn't backing down. They've already paid Sweetpea $4 million for the D&D rights, plus $1 million for legal costs. Both Warner Bros. and Universal have bought Dungeons & Dragons movie rights. Now it's time to find out which studio actually gets to make the movie.