Independent filmmaker John Sayles has cultivated a reputation as a populist—a decent sort of a guy. The writer-director’s The Brother From Another Planet was an earnest parable about the black man’s experience in America; Matewan chronicled a 1920 coal miners’ strike in West Virginia; and City of Hope commented on urban ills ranging from racial animosities to city- hall corruption.
Virginia Towler views John Sayles differently. A local attorney and aspiring screenwriter, Towler has filed a suit against Sayles, alleging copyright infringement, misrepresentation, and unfair competition. The case currently stands in federal district court in Alexandria, where the parties are gathering information for trial.
Towler’s grievance centers around Sayles’ 1992 Passion Fish, a drama about the relationship between a white soap-opera actress, bitter after being left paralyzed by a cab accident, and her black nurse, a recovering drug addict. Towler claims that the film’s script was substantially lifted from her screenplay Crossed Wires or Bobbie and Wendy Were Neighbors, a story of an interracial friendship between two women.
After her screenplay earned a prestigious award from the East Foundation of the Writer’s Guild of America, says Towler, she figured that it “suited the style and interests” of Sayles, so she made a series of phone calls to determine how to get it to him. Eventually, she says, she sent it to a Tracy Strain at SCS Corp., distributor of Sayles’ earlier The Brother From Another Planet and Matewan.
Towler claims that Strain led her to believe that SCS was Sayles’ company. Towler further alleges that Strain assured her that she could and would get the script to Sayles, and that Strain and Sayles had a close working relationship. So, Towler says, she sent Strain her script.
Towler says she never heard back from Strain—or, for that matter, Sayles. Her screenplay was never returned, and Towler did not call to inquire about it. “I have learned in discussions with several script-readers that they don’t appreciate being called,” Towler explains. “Since Sayles is a one-man show, I knew it would be some time before he actually read the screenplay. I didn’t want to bother him. And I figured that low- budget companies can’t be businesslike in the way they get back to people.”
Determined to make her film on her own, Towler produced a trailer and held a fund-raiser that paid her way to the Cannes Film Festival in 1992. But soon thereafter, she learned that Passion Fish had been made.
Contacted through his New York-based attorney, John Sloss, Sayles would not comment on the case. Sloss acknowledges that Sayles is aware of the suit. He says that Sayles is “frustrated” by it but does not want to “dignify or raise the ante” on the case by discussing it.
But Sloss does have a few things to say, specifically that Sayles “never saw [Towler’s] screenplay—and still hasn’t.”
Although she is not a trial lawyer, Towler is representing herself in the proceedings. She says she doesn’t have enough money to hire an attorney, and after consultation with several law firms, she realized that, because a copyright infringement suit is costly and its outcome unpredictable, representation on a contingency fee was unlikely. So every night, after a full day at the Department of Justice’s Criminal Division, Towler comes home to what she now calls her “real job”—researching and writing responses to defense motions, conducting discovery, and preparing for trial.
Towler has already fought two motions filed by the defense, which, along with Sayles, currently includes Atchafalaya Films (the production company that produced Passion Fish), Esperanza Inc. (another Sayles production company), and Miramax Films (which distributed Passion Fish)—all of which are represented by the D.C. firm Ross, Dixon & Masback. Late last month, all defendants other than Miramax sought to dismiss Towler’s claims on jurisdictional grounds. Only SCS Corp., owner of a now-defunct company that distributed other Sayles films, succeeded.
If the case makes it to trial, Towler will try to prove that by passing off her screenplay as his, Sayles engaged in misrepresentation and unfair competition. Copyright infringement, though, lies at the heart of the suit. To prove that, Towler must show that Sayles saw, had access to, or had knowledge of her work.
Towler will also have to demonstrate that her work is original, not simply a variation on a well-worn theme, and that Sayles’ work substantially copies hers. During the trial, the two works would be scrutinized so that the judge (or jury) could determine how closely details from the two track one another, and how original those details are. This is where Towler’s suit will likely face its toughest challenge, since it can be inferred from her complaint that many details of the two differ. The complaint alleges that Sayles “comprehensively and non-literally” infringed on her copyright. Hesitant to divulge too much before the trial, Towler will say only that Sayles usurped her story in a “very sophisticated and literary way.
“He took the way I told my story and adapted it for a story that was different.”
Sloss, however, flatly counters that there is “absolutely no similarity between the two screenplays.”
If the court determines that Towler has indeed been wronged, what would she seek from the suit? “A percentage of the profits from Passion Fish, the recognition I deserve as a contributor to the screenplay, and to bring forward the issue of the dearth of black women in film.”
“Writers think that a “c’ with a circle around it gives them copyright protection. It doesn’t,” she adds. “You can’t get any protection without registering the work with the Library of Congress. I’m not giving legal advice, I just want to show how little protection there is for writers.”
This suit, she explains, is a way of fighting the “disempowerment” of black females in the film industry. “It isn’t about me. It’s about respect.”
Art accompanying story in the printed newspaper is not available in this archive: Photograph by Christopher Bruns.