The controversy swirling around the 2005 film The Island never seems to end. Despite tanking at the box office, the film is still with us, primarily for three things: being director Michael Bay's first big commercial failure, touching off a public tiff between the producers and Scarlett Johansson, and of course, for being a complete rip-off of the 1979 low budget sci-fi film Parts: The Clonus Horror (AKA Clonus), a movie whose flaws are lovingly documented right here on this site.
The Island was so much of a rip-off, in fact, that the director and producer of Clonus (Robert Fiveson and Myrl A. Schriebman, respectively) took DreamWorks to court claiming copyright infringement. (Fiveson even spoke briefly about the situation in an interview posted on this site back in January of 2006.)
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Despite the obvious similarities to Clonus, which I laid out pretty clearly in my review of The Island, the lawsuit itself was a contentious subject among fans of the two films. Now comes word that the issue has been put to rest, more or less, as has the lawsuit. According to an inside source, Clonus Associates v. DreamWorks was settled out of court in late 2006, reportedly for a seven-figure sum to be paid to Clonus Associates.
Of course, there's no mystery about who that inside source is. It's original Clonus screenwriter Bob Sullivan, who despite the sealed nature of the settlement, is more than willing to talk about the lawsuit.
Even though he came up with the original idea behind both Clonus and its unofficial remake The Island, Sullivan says he's received very little in the way of compensation. In the course of our email correspondence, I invited Bob to answer some questions about the writing of the Clonus screenplay, the DreamWorks lawsuit, and the oddities of copyright law that he says led to his current predicament.
Last Minute Update!
I was originally going to run a version of this interview saying that I was unable to reach Robert Fiveson for a response. You know, the usual "unavailable for comment" stuff you see in trade magazines. However, just moments before I posted this interview, I got an email from Fiveson detailing his side of the story.
Instead of modifying the interview, I've included some of Fiveson's comments, which you can read at the end of this article.
Yeah, check me out. It's almost like I'm a journalist now!
Bob Sullivan and his wife Maureen.
Agony Booth: Tell me a little bit about where you first got the idea for Parts: The Clonus Horror. Did you ever imagine at the time that cloning would become the huge issue that it is today?
Bob Sullivan: I was at the University of Southern California Graduate Cinema School from 1970 to 1973that's where I met Robert Fivesonand in 1972 I was taking a course in Advanced Screenwriting, taught by Irwin Blacker, who used to be a story editor for
Bonanza. The way the class worked, there were ten students, and each of us was supposed to come up with an idea for a film and "pitch" it to the rest of the class, and make a 10 to 15 minute presentation of the basic idea. Then the others would votethey'd ask themselves the question, "If I were a movie producer, would I back this project?" If you got more "No" votes than "Yes" votes, you'd have to try again. But if you got more "Yes" votes than "No" votes, you turned it into a script. Once the script was completed, if Blacker liked it, he would get it to an agent, and if he really liked it, he would get it to his agent at the time, Dick Hyland.
The first idea I presented was horribleit was some lame concept about two policemen, one black and one white, that I knew stunk as I was presenting itand everyone voted "No". I was trying to come up with another idea when I visited the USC library looking for inspiration. And there, in some science magazine, was an article about cloning, illustrated with a hundred Ringo Starrs ranging across two pagesclones of Ringo. The article just told how the mechanism worked, and suddenly the idea came to me "of a piece"beginning, middle, and end, with all the plot twists and characters in place. I think of it as divine intervention when a fully-formed idea like that comes to you, and you don't have to develop it in fits and starts.
When I presented this idea to the class, I got ten "Yes" votes, and Blacker said, "Type that up and my agent can sell it within 24 hours!" He told me after the class that he had never seen such a positive reaction to a presentation. I never thought cloning would become such a big issue, and in fact it was such a small issue at the time that Blacker's agent couldn't sell the script. In 1973, nobody had ever heard of cloning, and sci-fi was dead. But by the end of the decade, there had been a few discussions in the popular media about cloning, and sci-fi was hot again because of Star Wars.
Fiveson had been after me for years to make the film, and I finally said yes because I thought it was an important message to convey, plus after years of "almost" making it as a writer, I could certainly have used the screen credit. I had a hitman script called Bad Clips that the Film Board of Canada came up with half the financing for, but they couldn't fund the rest. Leonard Nimoy met with me because he was interested in a script I'd written, Andre Morgan with Golden Harvest offered me a screenwriting job, but it meant relocating to Hong Kong. So I was struggling, and I thought a screenwriting credit for Clonus might help turn things around.
AB: Fiveson said he wanted to call the film Clonus, while the distributor came up with the Parts title. When you originally completed the screenplay, what title did you give it? And when you were writing it, did you always have a low budget production in mind, or were you hoping the film would be something more elaborate and grandiose? If it's the latter, were there any big scenes in the script that got cut due to budget constraints?
It was called Clonus from the beginning, and it was a bit more grandiose than the final product, but the final product is very close to my original idea because (unlike The Island) it was never about special effects, but about ideas and relationships. The only set piece I can remember being removed for budgetary reasons was a more elaborate escape from Clonus. Originally, Clonus was an island separated from the mainland by a short distance, and there was an underground chute where coffin-sized boxes on rollers sped along, transporting bodies in one direction and food in the other. Richard leaves through the chute, barely dodging the occasional coffin, one of which has his friend George in it.The only bit of dialogue I remember being cutI believe because the actor couldn't quite pull it offcame from Rick, the son of the guy that Richard was the clone of. After Rick meets Richard, at one point Rick says how weird it is to see Richard. "It's like meeting my father when he was my age. I can't imagine anything weirder! ... Yes I can, meeting my mother when she was my age, and seeing how attractive she was."
AB: How did you first meet Robert Fiveson and Myrl Schreibman, and how did they become interested in producing your screenplay?
Fiveson was a classmate at USC, and he read the script soon after I wrote it. As I mentioned, he'd been after me for years to make the film. I finally said yes, but he still had to get the money together, and after a decade I'd more or less given up on Hollywood. So I moved back East, where I'm from originally, and entered the world of publishing. That's when I got a call from Fiveson saying he'd gotten together a quarter of a million dollars to make the film. So I never actually met Myrl Schreibman, though I certainly corresponded with him enough while we all worked on the lawsuit against DreamWorks and the subsequent filings.
AB: Some have wondered why the lawsuit against DreamWorks was brought by only Fiveson and Schreibman, without the involvement of the Clonus screenwriters. Why weren't you a plaintiff in the lawsuit?
Fiveson asked me not to be part of the lawsuit, and not to file a suit of my own, because they wanted to keep it simple and focused. They didn't want DreamWorks to think there was going to be an endless parade of plaintiffs. I was under the impression that, if I helped with their suit, my interests would be taken care of as well.
But the biggest reason is because of the peculiarity of U.S. copyright law. When I signed the contract with Clonus Associates, it contained the usual boilerplate language assigning the copyright to them, and this was always a suit about who owned the copyright. I just wish in the United States, as in Europe, the creator of an original work had an absolute right to have his name attached to that work. In 1979, I sold the script for $4,000 plus one percent of the net, because I wanted to see the film get made and I wanted to get a screenwriting credit, which is invaluable in making it in Hollywood. I just wish writers had some groundsplagiarism, misappropriation, idea theft, somethingwhich would allow me to pursue a case. But all U.S. law cares about is who owns the copyright.
Of course, there's always the hope that someone reading this is a lawyer, or knows a lawyer who can come up with a theory of my case that they'd like to pursue, and carve out a few more rights for the creative community. (I can be contacted at email@example.com). That's what happened in Grosso v. Miramax, where Jeff Grosso pitched an idea and that idea was used without compensation. His attorney, John Marder, carved out some broader protections for writers, and as a result Marder was named the California Lawyer Attorney of the Year.
And the Writer's Guild of America is no help. Two months before The Island came out, a WGA attorney notified DreamWorks and the three writers of The Island that the WGA viewed their film as an unauthorized remake of Clonus. But suddenly, the whole thing was hushed up, and the attorney was fired. We know this because that attorney was our Deep Throat, telling us what had happened. But of course, the WGA won't help me noweven though their mission statement claims they were created to help all writersbecause I'm not a union member, and [Island writer] Caspian Tredwell-Owen, who was paid a million dollars for his "original" screenplay, is a union member.
AB: According to you, the Clonus v. DreamWorks suit was settled out of court last year for a seven-figure sum. What are your feelings on this? Do you think they should have gone to trial?
I can understand Fiveson's motivations for settling. His film finally turns a profit, the investors get their money back, and those with a percentage of the net get a little something. But mostly I can understand because it spares him the uncertainty of going up against DreamWorks' billions of dollars, which would mean endless appeals and the very real possibility of bankruptcy. If the defendants could have dazzled a jury with enough smoke and mirrors to win the case, Fiveson would have had to reimburse them for their astronomical legal expenses.
Of course, I would have liked for the case to go forward, or at least for my interests to have been maintained, just so the truth could have come out, and maybe I could have gotten some credit. And it would have been nice for Fiveson to have told me that it had been settled. I know it's a sealed settlement and he can't talk about it, but after all the effort I put into his casehelping compile the list of similarities between the two films, offering theories of the case (I created and used to edit The Entertainment Litigation Reporter for Andrews Publications), and even proofreading their filingsa call would have been nice.
In the end, all I got was a little over $2,000, representing one percent of the net after the original investors and attorneys were paid off from the settlement amount. In my opinion, such a large settlement is indicative of a realization on the defendants' part that The Island was, in fact, copied from Clonus. And it only makes sense that the creator of a film's story would also be the creator of the story of any remakes.
In 1979, I got $4,000 and screen credit for a film that cost a quarter of a million. In 2005 I get about half that and no credit for a film that cost $122 million. To me that seems blatantly unfair. I even sent a letter to Steven Spielberg, a co-founder of DreamWorks to whom I sent a copy of Clonus in 1998, asking him if he might do "the right thing"even if it was just to look at one of my newer scripts, to help make up for not getting a creditbut he never responded.
AB: Last but not least, can you update us on what you're doing these days? Have you written other screenplays? Also, have you heard from the other credited screenwriter on the Clonus screenplay, Ron Smith?Actually, I've never met Ron Smith. He was brought on board after they got the financing for the film, after I'd already moved back East. I think his main function was to help lower the film's budget, for example by replacing that costly scene of Richard's escape with one that could be shot for much less. I don't know what became of him, either; he was never involved in the barrage of e-mails that went back and forth among me, Fiveson, Schreibman, and the attorneys as the filings were being worked on. I believe he's gone on to do some work in video games, but I have no clue how he feels about the whole DreamWorks lawsuit.
I'm currently working in the Temple University Department of Education, helping inner city kids learn, but I'm still writing. I was a major contributor to The Encyclopedia of Popular Culture and When Falls the Coliseum. I'm working on a children's book, and I've recently written two scripts: another sci-fi film called Alpha One, and a Hitchcockian thriller called The Frame-Up.
Last minute update! Robert Fiveson responds!
Just minutes prior to posting this interview, I got this email. I'll let it speak for itself:
"I am very limited in what I can say, but here it is:
"Bob Sullivan was paid, to the penny, pro rata to his long standing contracted agreement and understanding. That we felt that Bob's idea and our collective efforts had been infringed was never in doubt on our part, which is why we brought suit for Federal Copyright Infringement.
"Bob was advised very early on that bringing a separate action would be counterproductive (and would fail), because he did not own the copyright to the filmthe partnership didand as such he would only muddy the waters on the true chain of title. Copyright infringement and the tests within that burden of proof (as we were all to learn) involve a lot more than just an idea. And in this case, we were alleging that much more than the ideaor the co-written scripthad been copied.
"As for Sullivan getting some sort of credit, I have no idea through what mechanism that could have been achieved. And it certainly was beyond the scope of any settlement discussions. The suit was about a film that we felt was infringed upon. In that regard, the whole was greater than the sum of its parts and Sullivan's efforts and contributions—while important, no doubt—were just one of those parts making the whole, but not the case itself.
"Bob is accurate that he was informed late that the case had been settled. This was a complete oversight in that I thought the attorneys he had been contacted by all along had informed him. When I learned that was not the case I was mortified and apologized profusely, sincerely and repeatedly.
"Apparently, that was not enough for Bob, and I find that regrettable."
So there you have it, some insight into the lawsuit from both the director and writer of Clonus. (This is a war of words that may even rival the beef that Scarlett Johansson has with the producers of The Island!) Will it escalate? Will they bury the hatchet? This site will continue to bring you minute by minute updates on these events as they unfold.
(Hey, that last sentence sounded good...)
[Correction: The original version of this article stated that Fiveson and Schreibman had personally received a seven-figure sum. This was incorrect. A sum was paid to Clonus Associates, a partnership reportedly composed of at least nine people.]
Update - May 28, 2007: Aaaaaaand... one last response, from Bob Sullivan, in response to Robert Fiveson's response:
"My real dissatisfaction was never with Fiveson, but with the intellectual property laws as they now stand. I believe my contribution was much greater than I am being given credit or compensation for. Fiveson keeps mentioning my 'idea', but my contribution was much more than a mere idea; it was a complete script with fully developed characters and dialogue; an idea cannot be copyrighted, but a script can. The entire basis of the lawsuit was 'ninety striking similarities' between Clonus and The Island, and if one were to check those ninety similarities, one would find that at least 83 of them were in the original script (the others involved things like wardrobe), and would have been in the finished film no matter who directed it, assuming they followed the script closely, which Fiveson did, a fact that I am thankful for. But my contribution does seem to be more than one fifth of one percent (representing $2,000 in a seven-figure settlement, assuming the seven figures are the lowest seven possible) with no credit. Plus I have to take Fiveson's word that that is all I deserve under the terms of the settlement, since the specific terms of the settlement are sealed from me.
"I only wish the terms weren't sealed, given Fiveson's excuse for my not being informed of the settlement for several months. He said in his response he 'thought the attorneys [I] had been contacted by all along had informed [me].' First of all, what attorneys is he talking about? There simply aren't any attorneys that I had been contacted by all along. The only attorney I was ever really in contact with was Fiveson's New York attorney, but when I finally got Fiveson on the phone, he said he thought I would have been contacted by his California attorney. I then called his California attorney, who was never in regular contact with me, and he said that the idea it would be up to him to tell me of the settlement was ludicrous on its face because he never represented me, and Fiveson knows that.
"But more importantly, news that big—after Fiveson contacted me immediately at every turn when he wanted me to suggest arguments for or to proofread filings, and especially with a supposed friend involved—you don't just 'leave to the attorneys' to take care of."