Gerald Brittle is the author of “The Demonologist,” a book focusing on Ed and Lorraine Warren famous for solving hauntingly terrifying paranormal cases in the 50’s. Brittle has now filed suit over Warner Bros. successful franchise, “The Conjuring.”
In a 355-page amended complaint recently filed in Virginia federal court, outlines how Warner Bros., New Line Productions, and director James Wan infringed on his exclusive right to create derivative works based on the Warrens’ cases. The basis of this claim is that in 1978 the Warrens granted Brittle the right to create the book and guaranteed that “no competing work” based on the “same subject” as “The Demonologist” can be contracted to any third party, specifically anything focused on their “lives and experiences as paranormal investigators”
Brittle is suing for copyright infringement, common law trespass to chattels, statutory business conspiracy, conversion and tortious interference with contract. He has also filed notice to terminate a share of the copyright in “The Demonologist” that he had granted to Lorraine Warren, effective on October 31st.
Brittle’s position is that when the Lorraine Warrens granted the Defendants the right to use the Warren Case Files which the movies are largely based on, she did not have the rights because of the previous contractual agreement between her and Brittle had already granted exclusive right to use those cases and limited the transfer. If the Defendants had done a chain-of-title search over the rights this would have been easily discoverable. According to Brittle, the rights were in fact passed to their subsidiary, including motion picture rights to book publisher Prentice Hall, later transferring them to Brittle with Warren’s agreement.
Brittle’s lawyer, Patrick C. Henry II, finds it “hard to believe that a large conglomerate such a s Warner Brothers, with their army of lawyers and who specializes in intellectual property rights deals, would not have found The Demonologist book or the deals related to it, or Brittle for that matter.” Henry finds that the “only logical conclusion” is that Warner Bros. knew about the deals and ignored them thinking “they would never get caught.”
Brittle further alleges that New Line explicitly told screenwriters of “The Conjuring” to not read this book because the studio lacked the rights, which arguably means that the “Defendants have build a billion-dollar franchise based on rights they knew they did not possess.” Henry further claims that “they ignored this inconvenient fact and wilfully proceeded anyway.”
Brittle is now pursuing a billion consisting of discouragement of defendant’s profits and trebled damages, plus profits form the stock premium that AT&T is paying Time Warner in their merger that was highly accredited to the franchise and an injunction to stop “Anabelle 2” and other films from being made.
According to the complaint, Brittle’s attorneys had sent a cease and desist to the Defendants before the release of “The Conjuring 2,” however, Warner Bros claimed the films were based on historic facts and not “The Demonologist.” This is a common way to dispel copyright claims involving real people. However, the author may have a not-so-brittle claim, arguably this in not a case based historic fact if the Warrens themselves lied about the events, boiling down the issue to the age-old question of whether or not ghosts and demons are real. As such, since the “Defendant’s moves are not based on ‘historical fact’ they cannot be protected under the “fair use” which exempt that particular content from copyright. Henry argues that the book is entitled to “thick” copyright protection, which essentially lowers the test when finding the works substantially similar. Making it an easier case to prove.
Henry also notes in the compliant that in an infringement case such as this, the most problematic aspect is discovering that the Defendants had “access” to the earlier work. The lawyer is confident in being able to prove this since there are records of director Wan having tweeted in praise of Brittle’s book in 2011, prior to the creation of “The Conjuring” script.
This is a lesson to all small and large producers alike to take care in researching the chain-of-title of artistic derivative elements when creating new works. The result of this case will indeed allow us to navigate how to bandage the damage once it has been done, but it is always necessary to take care in the foundations of creation before proceeding.
Credit: Jessica Wong
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