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KING v. ALLIED VISION

July 2, 1992

STEPHEN KING, Plaintiff,
v.
ALLIED VISION, LTD., NEW LINE CINEMA CORPORATION and INNOVATIVE BOOKS, a division of the INNOVATIVE CORPORATION, Defendants.



The opinion of the court was delivered by: CONSTANCE BAKER MOTLEY

FINDINGS OF FACT AND CONCLUSIONS OF LAW ON PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION

 FINDINGS OF FACT AND CONCLUSIONS OF LAW

 I. INTRODUCTION

 In this application for a preliminary injunction, plaintiff seeks to enjoin defendants from using plaintiff's name in a possessory or "based upon" credit in connection with the movie "The Lawnmower Man". Plaintiff bases his claim for relief on the Lanham Act and similar claims under New York state law, and argues that the movie bears no likeness to the short story which he authored and published under the same name.

 This case first came before the court in a hearing on plaintiff's application for a temporary restraining order on June 16, 1992. At that time, the court, having read the short story upon which the film was purportedly based, viewed the film in question and heard argument on plaintiff's application. The court denied the relief requested on the ground that plaintiff's delay in seeking a temporary restraining order undermined his claim that he required immediate relief, and on the ground that plaintiff had failed to establish that further irreparable harm would result between then and the date of the preliminary injunction hearing which had been previously scheduled for June 29, 1992. At the same time, the court ruled that the trial would be consolidated with the preliminary injunction hearing under Rule 65(2) of the Federal Rules of Civil Procedure, since it appeared that the case did not involve many witnesses and could be completed in one or two trial days.

 The trial began on June 30, 1992, the court having granted the parties' request to delay the trial one day to engage in settlement negotiations. The court now finds that the trial has proven to be more extensive than it initially appeared it would be. However, the court has heard enough of the case to permit a preliminary injunction to issue at this time, pending the remainder of the trial, as plaintiff has sustained his burden of proving the elements necessary to obtain preliminary relief.

 II. FINDINGS OF FACT

 After hearing the evidence and weighing the testimony and exhibits received in evidence, the court now makes the following preliminary findings of fact.

 1. The short story titled "The Lawnmower Man" and authored by the now famous Stephen King on or about 1975 is published in a collection of short stories by the same author titled "Nightshift". At the time of its publication, plaintiff was not well-known; today his reputation is world-wide.

 2. The film titled "The Lawnmower Man" is produced by defendant Allied Vision, Ltd. ("Allied") and distributed domestically by defendant New Line Cinema Corporation ("New Line"). Both plaintiff and New Line are United States citizens. Allied is a citizen of Great Britain.

 4. In the film's advertising and promotional materials, and in the beginning of the film itself, the film is prominently identified as "Stephen King's 'The Lawnmower Man'". The film is also advertised and promoted as "based upon" a short story by Stephen King. Plaintiff's name is prominently used in connection with the film in other ways, as well. For example, some previews and advertisements introduce the movie as "from the mind of Stephen King", or "from the imagination of Stephen King".

 5. Despite the prominent use of plaintiff's name in connection with the film, the film cannot truthfully be said to be "based upon" plaintiff's short story. The film incorporates only one scene from the story and uses it in a manner fundamentally inconsistent with the essential plot, characters and theme of the short story. The scene from the short story, as used in the film, occupies approximately two minutes of time on the screen, and the rest of the film deals with material entirely unrelated to the short story. Plaintiff's short story is about a lazy, suburban husband who neglects his lawn after an unfortunate incident in which his old lawnmower, operated by a neighborhood boy who usually mows his lawn, mows over the neighbor's cat. After great delay in hiring someone to mow his lawn, the husband discovers that his regular lawnmower boy has gone off to college and he resorts to the yellow pages to find a lawnmower service. The service that he calls sends over an obese man in overalls who turns out to be an agent from the pagan god Pan. The lawnmower begins mowing the lawn on its own. The cleft-footed lawnmower man proceeds to take off all of his clothes and runs after the lawnmower on his hands and knees, eating grass, and swerving to eat a mole that the lawnmower runs over. The horrified homeowner calls the police, which provokes the all-knowing lawnmower man to have his lawnmower chase the man, and presumably run him over. The story ends with the police discovering the remains of the man in the birdbath. The story in its entirety is ten pages long. The movie is a full length feature film about "Virtual Reality", a highly advanced computer technology with the potential to alter and improve the human mind. The protagonist is a well-intentioned scientist whose technology advances beyond his control. The subject of the technological experiments is a good-hearted, simple-minded boy who happens to mow lawns. The climatic scene from the short story is inserted into the film in a manner wholly unrelated to the plot of the film, and key elements of the short story, such as the agent from Pan and the retribution on the lazy homeowner, are omitted from the film. Although the court will not summarize the myriad of differences between the film and the short story, suffice it to say that upon viewing the film, the typical movie-goer who has read plaintiff's story would be dismayed to see the film promoted as "based upon" plaintiff's work.

 6. Plaintiff first learned of defendants' use of his name in connection with the film in October of 1991 when he read a synopsis in a professional journal describing his connection with a film about "Virtual Reality". Plaintiff, through his lawyer Jay Kramer, informed defendants that he did not want a possessory credit on October 9, 1991, and on October 21, 1991, and thereafter on February 28, 1992. (Pl. Exh. 5) Plaintiff's ...


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