Judge won’t reinstate ‘Avatar’ contract claims against James Cameron

A science fiction writer has failed to convince a federal judge to reconsider his decision dismissing breach-of-contract claims against director James Cameron over the alleged use of two screenplays for the blockbuster movie “Avatar.”

Bryant Moore’s contract claims were preempted by his copyright infringement claims, which have not been dismissed and remain in litigation, Judge Roger W. Titus of the U.S. District Court for the District of Maryland said.

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"Avatar" director James Cameron speaks at a media briefing in 2011, with a scene from the film shown on a screen in the background.

Moore’s attorney, Donald Temple of Washington, did not respond to a request for comment regarding the ruling.

“Avatar,” released in 2009, received both critical and popular acclaim, winning three Academy Awards and a Golden Globe.  It is the highest-grossing film of all time, with reported earnings of $2.8 billion.

According to Judge Titus’ opinion, prior to the release of the movie, Moore wrote two screenplays: “Aquatica,” registered with the U.S. Copyright Office in 1994, and “Descendants: The Pollination,” registered in 2003.  He registered a revised version of “Aquatica” under the title “Aquapocalypse” in 2006.

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Moore says he submitted his first screenplay to Cameron’s production company, Lightstorm Entertainment, in 1994 and 1995 through an intermediary.  In 2003, he sent the “Aquatica” screenplay again, this time to Cameron’s business manager and the creative director for Lightstorm.  He also sent the “Descendants” script to Lightstorm in 2003, allegedly with permission from the company.

In his complaint, Moore describes striking similarities between his “Descendants” script and “Avatar,” including the opening scene’s bioluminescent plant life and the relationship between the heroes and heroines.

The similarities between “Avatar” and “Aquatica” allegedly include a hero who leaves a former military life to participate in hybrid scientific-military exploration, a military-technical collaboration, search for rare and valuable natural resources not in their control, and genetically created and engineered beings.

Moore filed suit in December 2011 for breach of implied contract and copyright infringement with respect to both of his screenplays.

Judge Titus held a hearing March 18 on the defendants’ motion to dismiss the complaint for failure to state a claim.  He dismissed the breach-of-contract claims but upheld the copyright claims.

Moore moved for reconsideration two weeks later under Federal Rules of Civil Procedure 59(e) and 60(b).

Judge Titus said only orders that constitute final judgments may be reconsidered under the two rules.  His March 18 order dismissing some, but not all, of Moore’s claims was not a final judgment, he said.

Even if the order were amenable to review under the rules, Moore had to show that there was a real possibility that the outcome of his breach-of-contract claims would be different if they were reinstated, Judge Titus said.

Moore could not do so because he failed to show any possibility that the claims would survive preemption, the judge said.

He explained that federal copyright law preempts state law when the work in question falls within the scope of the subject matter of copyright and when the rights granted under state law are equivalent to any exclusive rights within the scope of federal copyright.

Because the parties did not dispute that Moore’s breach-of-contract claims satisfied the first prong, the judge focused on whether the claims were equivalent to exclusive rights under federal law.

To avoid preemption, a contract claim must include an extra element that makes it qualitatively different from a copyright infringement claim.

Moore argued that his implied contract with the defendants gave rise to an implied promise to pay if they used his materials and that the implied promise to pay constituted the extra element that shielded his breach-of-contract claims from preemption.

Although Moore cited several cases that seemed to support his position, Judge Titus said the plaintiff relied on precedents that involve an implicit promise to pay arising from a bilateral agreement between the parties.

In this case, there was no evidence or allegation that any such agreement exists between the parties or that there are other exceptional circumstances meriting reconsideration, the judge said.

Moore v. Lightstorm Entertainment et al., No. 11-3644, 2013 WL 4052813 (D. Md. Aug. 9, 2013).