Universal's "Bourne Identity" Warner Brothers Fighting Lawsuit

How WB missed a chance to develop a billion dollar property -- and why 14 years after giving up rights, it's still in court with a dead man.

In  Hollywood, there have been great forward-looking decisions, and then there have been poorer ones. Warner Bros.' prerogative to not make a film based on Robert Ludlum's best-selling 1980 spy novel, The Bourne Identity, certainly falls in the latter category.

Yes, Warners once had the opportunity to do a film adaptation and even held discussions with Burt Reynolds about playing the role that eventually solidified Matt Damon's stature as one of the biggest actors in town.

How the studio passed on this opportunity is a story in itself. In 1981, film rights to the Ludlum novel had been acquired by Anthony Lazzarino's Windwood/Glen Productions. Then, in a deal that gathered attention in a New York courtroom last month, this company sold those rights to Warners' predecessor, Orion Pictures, in exchange for a 3.75 percent interest and a presentation credit.

Warners had 18 years to get a feature film off the ground, but it never did so other than a 1988 TV movie starring Richard Chamberlain. In 1999, it allowed the rights to revert back to Ludlum, who then negotiated a deal with Universal Pictures. And so in the past decade, Warners has watched from the sidelines as The Bourne Identity  and three sequels have grossed more than a billion dollars at the theatrical box office worldwide.

Not only has Warners missed out on all of that, but now comes the equally incredible fact that it is being sued over Universal's film. Even more remarkable? The lawsuit -- which claims that Lazzarino was robbed of what was due to him -- was first initiated eight years ago. Lazzarino passed away in 2012, and now his widow is seeking to revive claims that have lay dormant for five years. A long time has passed, but a New York state judge is now entertaining the possibility of allowing the lawsuit to proceed.

At a hearing in March, Aaron Siri, the estate's new attorney, attempted to explain to a judge that Lazzarino was in his 80s when the judge granted a stay, and was working on a new federal lawsuit he wished to file because he strongly believed that it was a matter for federal jurisdiction, but never finished it. Now, Lazzarino's widow has decided to green light an attempt to lift the stay and amend the lawsuit.

The estate's new legal theory is that under the terms of the 1981 deal, Warners owes a 3.75 percent interest and a presentation credit on any film "produced or caused to be produced by Orion." Warners' failure to do that in 2002 when Universal's film came out would allegedly be within the statute of limitations of a lawsuit initiated in 2005. Adds its legal papers: "Warner Bros. apparently chose to transfer away its rights to the film; but this did not, and could not, negate its obligations to Winwood related to the film. Under elementary New York contract law, a party cannot negate their contractual obligations by simply transferring away their contractual rights."

At a hearing March 12 before New York Superior Judge Marcy Friedman, attorneys for Warner Bros. attacked this theory.

On the merits of the claims,  attorney Marshall Beil of McGuire Woods argued that the reason Lazzarino never asserted such a claim was because it was impossible -- inconsistent with the language, intent and purpose of the 1981 contract. Lazzarino's company was due his profit participation if Orion -- not another studio -- made the film.

Bell added: "If Orion decided not to make the film because Burt Reynolds did not want to be part of it, which is in fact, what happened, or for any other reason, Winwood/Glen had two things that it could do. One is, it could take the film out of turnaround, which means basically buy it back and try to sell it to somebody else, or if Orion sold it to a third party, another studio, for example, Mr. Lazzarino had a right to match whatever Orion was getting for its rights. Neither of those happened."

A decision from Judge Friedman on whether to allow a lawsuit against one studio over another studio's film made more than a decade ago should be coming soon. We'll bet on Warner Bros. winning, but as the Bourne franchise has taught us, never count out the guy presumed dead.

Read More... http://www.hollywoodreporter.com/thr-esq/warner-bros-fighting-lawsuit-universals-436911