“Holdovers” or Leftovers? Plagiarism Accusation Rocks Oscars

On the eve of Hollywood’s biggest evening, veteran screenwriter Simon Stephenson went public with a shocking accusation: the script for “The Holdovers,” the Paul

“Holdovers” or Leftovers? Plagiarism Accusation Rocks Oscars

On the eve of Hollywood’s biggest evening, veteran screenwriter Simon Stephenson went public with a shocking accusation: the script for “The Holdovers,” the Paul Giamatti vehicle up for a stunning five Academy Awards, had been plagiarized from a previous project the “Paddington 2” and “Luca” writer had created and shopped around Tinseltown.

But is this really a case of plagiarism or simply sour grapes?

What does U.S. copyright law have to say about matters like this?

And what could it mean for the future of the cast and crew of “The Holdovers,” as well as the studio and production company who greenlit and financed the project?

A Claim a Decade in the Making

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In 2013, Simon Stephenson started knocking on directorial and producer doors with a new script he had penned, entitled “Frisco.”

At the heart of the story lies a cantankerous children’s physician saddled with supervising a 15-year-old patient. The script was pegged as the #3 entry on 2013’s edition of The Blacklist, which surveys the best Hollywood scripts that have yet to become active projects.

While there was some initial interest, including from “The Holdovers” director Alexander Payne, the project languished in slush-pile hell until 2019, when Stephenson pitched the project to Netflix in hopes of breathing new life into “Frisco.” However, Netflix decided to pass as well, and “Frisco” seemed destined never to be made.

But then Stephenson became aware of a forthcoming project directed by Alexander Payne and written by a newbie screenwriter named David Hemingson, which sounded eerily similar to the plot for “Frisco.” The plot for “The Holdovers” features a cantankerous teacher at a prestigious New England private boys’ school forced to chaperone one of his young charges over the Christmas break. Stephenson became suspicious as the apparent coincidences between his script and this new one began to pile up, and did the logical thing. He started digging, acquiring a copy of the script for “The Holdovers” and comparing it to his own script for “Frisco.”

On January 12, 2024, Stephenson sent an email to the Writers’ Guild of America, of which he is a member, outlining a shocking accusation: the script for “The Holdovers” hewed far too closely to the “Frisco” script to be accounted for by mere coincidence.

He accused Payne, who has stated on the record that he was involved in the creation of the script for “The Holdovers” but has not committed to saying just how far his involvement went, of plagiarizing the “Frisco” script in its “meaningful entirety,” in many cases “line by line.”

However, weeks of discussion between Stephenson and the WGA went nowhere. WGA told Stephenson that intellectual property infringement claims of this sort were not the Guild’s rightful remit because “Frisco” was written on spec (i.e. created as a private, personal project and not under the auspices of a contractual offer). The general counsel for WGA told Stephenson that his best chance for redress was to take his evidence to the courts.

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But then, just one day before the Oscars, Variety broke the story of Stephenson’s accusations. The article highlighted Stephenson’s evidence to support his claim and suggested an apparent firestorm within the WGA’s leadership and membership regarding the accusations and how the WGA should, or should not, be handling them.

An additional layer of complexity in the situation was introduced when the article’s author noted that all three men at the center of the story are WGA members and that Stephenson and Payne are both represented by Creative Artists Agency, or CAA.

Whether this is at all relevant to the WGA’s handling of the case, or lack thereof, is impossible to state with any certainty from the outside looking in. However, it does raise some very uncomfortable questions because, at least in this case, the WGA’s laissez-faire approach appears to stand in blatant contradiction to its own bylaws and its entire reason for being. I invite the reader to consider these questions on their own, and otherwise am going to lay them aside for now.

As the accusations only came to public view on Saturday, well after the final Oscar votes were tallied, the revelations had little to no apparent impact on the film’s momentum with the Academy. Indeed, Da’Vine Joy Randolph took home a Best Supporting Actress award, and as previously mentioned, “The Holdovers” was up for a total of five gold statuettes. But leaving the Oscars and the court of public opinion aside, how likely is Stephenson’s case to hold up under existing IP law?

Plagiarism and the Law

The legal definition of plagiarism is fairly broad, in that it only requires that a person take another person’s work or some portion thereof and presents it as their own without proper attribution, credit, or remuneration. In most circumstances, plagiarism is not illegal. Bad form, yes, and a violation of nearly all ethics and honor codes upheld by educational institutions and private employers, but it is only illegal in very tightly limited situations. One of these, of course, is plagiarism of works protected under copyright law.

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When a person completes a work, be it written, painted, drawn, sculpted, or otherwise crafted, that work is protected by copyright law by default. However, there’s a big catch: the work must be properly registered with the US Copyright office for copyright protections to kick in. Without such registration, the courts have historically abstained from getting involved in infringement litigation, with only a very few exceptions.

Many people wrongly believe there is a method known as a “poor man’s copyright,” wherein a person can send a copy of the work in question to themselves via certified mail and leave it unopened. The theory behind this is that if the plaintiff can produce a sealed, postmarked envelope with their work inside which predates a defendant’s usage of the same material, the plaintiff has successfully proved ownership of the work and protection under copyright law. However, this is a myth! No such mechanism exists in US law. You either have to register the work with the government or accept that your options for seeking redress are essentially limited to writing a sharply worded letter to the alleged infringer and hoping they’ll suffer a sudden attack of conscience.

Whether Stephenson’s screenplay for “Frisco” was properly registered with the US Copyright Office has a lot of bearing on what he can expect the courts to do–or not. If he did register the screenplay, then there’s no problem. He can simply file an action in federal court outlining the allegations and let the law take it from there. If he didn’t, he might be able to make a case for emotional distress or pain and suffering and sue on that basis with a reasonable chance of winning a financial settlement, but it’s unlikely that he will be able to demand other remedies for damages incurred, such as lost revenue or appropriate credit for his alleged role in the inception of “The Holdovers.”

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However, other Hollywood plagiarism cases have often been resolved in ways that seem to fly in the face of settled case law. For example, in 2003, Sylvester Stallone was accused of plagiarism for basing the original script for “Rocky” in large part on the life and career of boxer Chuck Wepner. Stallone ended up reaching an undisclosed financial settlement with Wepner in 2006. Bram Stoker’s estate sued the production company behind the seminal 1922 silent horror movie “Nosferatu” for copyright infringement and won in the German courts, which ordered all existing copies of the film destroyed. However, one copy survived in the US, where Dracula had already passed into the public domain and was therefore fair game. Since the US courts refused to comply with the German court order on that basis, that single copy became the source for every iteration of the Max Schreck classic horror movie buffs know and thrill to today. There are other examples, of course, but I felt these two deserve special attention.

But what does all this mean for Simon Stephenson?

The Bottom Line

Right here and now, it seems likely that Stephenson’s next move would be to file suit against Payne and Hemingson, naming production company Focus Pictures and Miramax, the film’s financier, as co-defendants. However, Stephenson would have to be able to demonstrate in court that US copyright law protects “Frisco” and him as the author. He’d also need to show that Payne knowingly and intentionally utilized enough key plot elements of “Frisco” while using Hemingson as a decoy to both allay suspicion of plagiarism and cut Stephenson out of his rightful compensation for his intellectual property.

From a legal standpoint, there’s no readily apparent problem here: provided the script for “Frisco” is indeed registered with the US Copyright Office, Stephenson appears to have receipts dating back to 2013 for Payne’s previous interactions with the “Frisco” script. If both of these are demonstrated to be true in court, on its face this would seem to be about as open-and-shut a case as a federal judge could hope for. He could reasonably sue for, among other things, unjust enrichment, copyright infringement, and failure to be properly named as the primary screenwriter for “The Holdovers.”

However, career-wise, this could be an extremely risky move for Stephenson at this time. With a film garnering five Oscar nominations in the can and an impressive resume of other successful films, Payne is in a definite power position in Hollywood at the moment, albeit one with a limited shelf life. After all, in Hollywood, you’re only as good as your last movie. But that power could be enough to shatter Stephenson’s reputation and derail his career permanently.

All this means Stephenson needs to do some fairly serious calculus regarding risk versus reward, preferably in consultation with an established IP attorney who’s also familiar with the politics of the entertainment industry!

About John Rizvi, Esq.

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John Rizvi is a Registered and Board Certified Patent Attorney, Adjunct Professor of Intellectual Property Law, best-selling author, and featured speaker on topics of interest to inventors and entrepreneurs (including TEDx).

His books include “Escaping the Gray” and “Think and Grow Rich for Inventors” and have won critical acclaim including an endorsement from Kevin Harrington, one of the original sharks on the hit TV show – Shark Tank, responsible for the successful launch of over 500 products resulting in more than $5 billion in sales worldwide. You can learn more about Professor Rizvi and his patent law practice at www.ThePatentProfessor.com

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