Funny Man

by Patrick McGilligan

  A month or so later, Brooks announced that Hertzberg had been signed to produce Silent Movie. They hadn’t worked together since Blazing Saddles. Zola and Cohen were “dumbfounded.” The writers discussed filing a lawsuit against Brooks and Hertzberg, but decided to hold off until seeing Silent Movie one year later in the summer of 1976.

  They had been cheated, they decided, after seeing the film. Besides the “major aspect,” they noticed a few gags shared by their treatment and Silent Movie, including Marcel Marceau’s single spoken word of dialogue, which echoed a moment toward the end of “Lean Talk,” when sound is also heard for the first and only time on the soundtrack: applause.

  The “Lean Talk” writers decided that Cohen should take the lead on the lawsuit so Zola could pursue her other writing projects. It took him a while to organize a lawyer on the West Coast and file in court in April 1977, alleging plagiarism and breach of confidence. That was over three years since the inception of “Lean Talk” and the submission of their treatment to Hertzberg. The long interval plus the typical court delays allowed Brooks’s lawyers to concentrate their defense on two grounds: that a contemporary silent film was a public domain concept too broad to be plagiarized and that the statute of limitations had run out on any breach of trust inherent in their spec script submission.

  When Brooks was deposed, he insisted that his knowledge of “Lean Talk” was vague, stemming from the lawsuit itself, and he adamantly denied any piracy or knowledge of piracy, saying that Silent Movie had been entirely Ron Clark’s brainchild. He said he had never solicited “creative advice” from Hertzberg. The producer had been paid his salary of $100,000, Brooks said, for organizing and supervising a production crew. “He can stick his two cents in every once in a while” creatively, “but it’s not required and it’s not paid for,” he explained. “He could never just tell me something was funny or unfunny.”

  Brooks, in his depositions for that case and others, cracked jokes to entertain the lawyers in the room, to the point where, one day, Cohen’s lawyer asked him to cut it out and take the interrogatory seriously. Likewise, more than once he had to be reminded not to make funny faces or gestures in response to queries but to use words for the record.

  The case dragged on until late 1981, when the court ordered a “mandatory settlement conference,” which is something judges do when they feel both sides have an equivalence of facts and legal basis. It is not rare for aggrieved parties to receive financial compensation to end protracted litigation, especially in Hollywood, and often production company contracts carry insurance clauses to absorb such costs, which need not concern the filmmaker unnecessarily. Nor is money always tendered without cause. Cohen and Zola received undisclosed sums to end the suit, so it never went to open court.

  Joseph Merrick’s story was arguably in the public domain, too: Merrick had died in 1890, and Dr. Frederick Treves’s book about the Elephant Man, which popularized the tale, was originally published in 1923. In any event, copyright law was generally liberal on the fact- or history-based life stories of famous people now deceased, as opposed to fictional versions of their lives, a distinction that would bear on future lawsuits involving Brooks.

  There was, however, the prominent play with the same title as the Brooksfilms production. Written by Bernard Pomerance, The Elephant Man debuted in London at the Hampstead Theatre in 1977 before shifting in repertory to the National Theatre, then in 1978 to off-Broadway and finally to Broadway, where the play initiated a long run and won a Tony.

  According to his memoir, Brooksfilms producer Jonathan Sanger did not learn of the stage version, surprisingly, until Brooks’s secretary phoned him in October 1978 to tell him that The Elephant Man had arrived from London, with “ecstatic” reviews for its off-Broadway production. The Brooksfilms version of Joseph Merrick’s story was already well under way, Sanger wrote later, based on the script that his babysitter had handed to him, written by her boyfriend and a partner, based on the anthropologist Ashley Montagu’s 1971 book. Montagu’s book, however, drew its account almost wholesale from Dr. Treves’s.

  “We still had the option on Ashley Montagu’s book,” Sanger said, “but of course I knew that gave us no legal position.” Soon afterward, Sanger met with Brooks, who was “quite pragmatic,” Sanger wrote. “He had no intention of abandoning the project.”

  “Look,” Brooks said, “they don’t own the Elephant Man. Just their version of it. And the transition from their play to a movie will not be easy. It’s a stylized play. Let’s just stay on the track we’re on. This isn’t the first time there’s been a competing project.”

  Their working title was the same as Pomerance’s. Brooks liked batting titles around, and for a while they considered other “mostly ludicrous” titles, until Brooks called in a specialist, Bert Fields, “the renowned entertainment lawyer,” Sanger wrote, “a friend of Mel’s,” to parse the issues. Although a title could not be copyrighted, the renowned lawyer explained, the playwright could invoke the question of “secondary meaning,” i.e., “a developed association in the public’s mind,” according to the Merriam-Webster Law Dictionary, to stop another confusing use of the same title. However, “secondary meaning” was difficult to prove in a courtroom, and Fields was confident that he could build “a tidy case around the title issue with plays and other works that were unable to make the precedent.”

  Sure enough, ten months later, after winning the Tony Award for Best Play that year, Pomerance and his producers filed suit against Brooks’s production company, arguing that their “valuable property rights” would be diluted by the film called The Elephant Man, then in preproduction in London. The suit did “not object to Brooks’ production of the film,” Variety reported, “only to his use of their title.” Brooks and the soon-to-be-renamed Brooksfilms countersued for damage to his reputation, claiming a right to the title.

  At their first legal conference, Brooks reminded Sanger “that it would be best, regardless of our curiosity, for all of us, the writers, [director] David [Lynch], me and our office staff, to avoid seeing the play.” While taking pains to point out big differences between Pomerance’s play and the eventual Brooksfilms production, Sanger admitted in his memoir that he himself rushed to New York to see the play “early in its run,” shortly after getting the call from Brooks’s secretary. He “never mentioned” that to Brooks.

  Whether the two scenarists, Christopher De Vore and Eric Bergren, saw Pomerance’s play in London or New York, or whether Brooks himself saw it, is unknown; Brooks attended nearly every important play on his frequent visits to London, and that went double for New York, especially plays that won Tonys. Whether they saw the Pomerance play remains unclear because the court records are sealed and a nondisclosure clause accompanied the eventual settlement as it often does. Brooks was allowed to capitalize on a hit play with a film of the same title. Pomerance declined to comment for this book.*

  Another court case involving Brooks, story origination, and a public domain defense was the lawsuit surrounding Frances. The life story of actress Frances Farmer, whose meteoric Hollywood career was marred by abuse and tragedy, Frances was another example of a superserious Brooksfilms production, the one that immediately followed The Elephant Man, released in 1982. Starring Jessica Lange, who was Oscar nominated for her lead performance, the production also involved producer Jonathan Sanger and scenarists Christopher De Vore and Eric Bergren, who had help on the script from Nicholas Kazan.

  One of the people who filed suit against Frances had met with the comedian in New York, back in early 1978, when Brooks was giving interviews to promote High Anxiety. William Arnold was the film critic for the Seattle Post-Intelligencer, the morning daily of the largest city in the state of Washington, dubbed “Movietown USA” for its avid film-going population. Arnold was also the author of the forthcoming book Shadowland, a biography of Farmer, a native of Seattle, which was due to be published by McGraw-Hill in mid-1978. His searching biography integrated scrutiny of the facts
of the actress’s memoir with his own reportage and research into her shadowy life, deploying himself in the narrative as a character who falls in love with Farmer as he digs for the truth.

  Accompanied by Susan Stanley, a reviewer for the Oregon Journal, a Portland daily, Arnold met Brooks at the Manhattan offices of 20th Century–Fox. “The three of us talked for more than two hours,” Arnold recalled. “It went way beyond an interview to be this profound and very personal conversation about the meaning of life.” They also discussed Arnold’s book about Frances Farmer. Brooks was “quite interested,” Arnold said. “At the end of this love fest, we were all misty-eyed, and Mel actually kissed each of us on the cheek. I got his autograph, addressed to my infant daughter, the only time I’ve ever asked for one. I thought he was one of the grandest human beings I had ever met.”

  Arnold already had partners for a prospective screen adaptation. The actress Tippi Hedren’s husband, producer Noel Marshall, had optioned the book under the auspices of Marie Yates, an aspiring producer acting as Arnold’s Hollywood literary agent, who had read an early version of the manuscript. As part of the deal, Yates also contracted with Marshall to coproduce the Frances Farmer biopic based on Arnold’s book. While Marshall was preoccupied with producing another film, Yates assisted Arnold’s writing of the first-draft script. That script, credited to him alone, was dated March 1979.

  Marshall and Yates experienced a falling-out, however, and Arnold felt torn between the two people. Yates phoned not long after Arnold’s New York meeting with Brooks. She said she had another producer on tap, “one much more prominent than Noel Marshall, who would finance me in a lawsuit to wrest the rights away from Noel so I can sell them to him,” according to Arnold. The much more prominent producer was Brooks.

  Yates asked Arnold to come to Hollywood for a parley with Brooks. Arnold thought, without yet deciding against Marshall, “Gee, it would sure be great to see my pal Mel again.” He flew to Los Angeles, meeting first with Yates, her husband, and their lawyer, undergoing “a lengthy briefing on the legal basis by which Mel Brooks’ team of attorneys would get the film rights back to me.” He, Yates, and the lawyer then drove to 20th Century–Fox and proceeded to the administration building, climbing the stairs to Brooks’s third-floor office. Brooks was busy in an adjoining conference room, “through which I could occasionally make out the name of Frances Farmer in muffled conversation. After more than an hour had passed, the door finally opened and we were ushered in.”

  Brooks was “not noticeably” happy to see his old pal. “As we shook hands, he couldn’t have been any colder,” said Arnold. “He didn’t even smile. When I alluded to our earlier happy meeting in New York, he said he didn’t remember it.” The group all sat down at a long conference table, Brooks at one end, Arnold at the other, between them Yates, her lawyer, three attorneys representing Brooks, and other members of his staff. “The air was solemn, with little cheerful small talk or the usual social niceties.”

  Brooks launched into a monologue saying he had decided to make a movie about Frances Farmer’s life and thought Shadowland would be “the best source for it.” He was prepared to finance a lawsuit against Marshall, who in his view had in various ways defaulted on his obligations. Brooks’s attorneys had advised him that they could get a quick judgment.

  “Then the monologue got weird,” Arnold recalled. Brooks said he understood from Yates that Arnold wanted to contribute to the script and be part of “the movie team.” That was not going to happen, declared Brooks. He wanted this project for “his boys,” who were the writers of the Elephant Man script, Christopher De Vore and Eric Bergren. Arnold would have “no input into the script, and my only connection to the movie would be an invitation to its premiere. Then he went on to tell me that I was ‘nothing’ in his eyes and that he was an important filmmaker and how I should be happy that he was willing to have anything to do with me. He went on with this theme for some time. I mean an eerily long time. It turned into a rant, with me the object of his anger. He kept [saying] that he loathed journalists and didn’t like having anything to do with them.”

  Arnold felt stunned; he didn’t utter a word, thinking the whole situation was unreal. Yates and her lawyer squirmed in their seats. “The gallery of yes-men were punctuating Mel’s pronouncements with wise nods and every so often seconding his comments with a ‘That’s right, Mel!’” similar to the scene with the studio mogul and his troop of flunkies knocking one another down to light the mogul’s cigar in Silent Movie.

  Brooks ended his monologue on a dire note, recalled Arnold, declaring “in so many words that if I didn’t go along with him, he could go ahead and make the movie anyway because it was about a public domain figure and he didn’t really need to buy the book.”

  Brooks exited. One of his retinue, realizing that Arnold was livid, apologized: “Mel’s bark is worse than his bite.” Arnold’s side repaired to a cocktail lounge to lick their wounds. Yates was in tears. Her lawyer told Arnold he had heard Brooks was the kind of guy who liked to “brutally humiliate an employee in public and then buy him a new car.”

  The dazed Arnold told Yates he was not interested in any partnership with Brooks. (“I didn’t want to be in the same hemisphere with him,” Arnold recalled.) The despondent Yates tried to talk Arnold into accepting Brooks’s offer anyway. Arnold said no. Months passed. Zoetrope and Francis Ford Coppola evinced an interest in Shadowland. Then one day, at the end of October 1980, Arnold read in Variety that Brooksfilms was going to produce a biopic on Frances Farmer with Jonathan Sanger sharing the “production duties” with an expert on the sad life story of the actress: Yates, Arnold’s agent, was the said expert.

  Arnold was shocked, although not devastated. “I didn’t think Marie could get away with it,” he said. “I also didn’t think Mel Brooks could get away with it . . . . He wanted to make Shadowland, as he said to me face to face and in front of witnesses. My unique and very personal take on the subject. To the point of hiring a woman whose only qualification for the job of his coproducer was her fiduciary relationship to me.”

  Sanger flew to Seattle for another stab at diplomacy in the living room of Arnold’s house on Queen Anne Hill. “The thinking was, probably, that away from Brooks and Marshall, the two of us would hit it off and become pals and come to terms.” That did not happen. “It was like my second Brooks meeting all over,” with Sanger repeating Brooks’s cold admonitions. Prepared to be conciliatory, Arnold felt doubly insulted.

  Arnold joined Marshall in filing a suit against Brooks and Brooksfilms. The discovery process obliged Brooksfilms to show script drafts to the plaintiffs as the case progressed. “It became apparent,” said Arnold, “they were barely even trying to disguise the fact that they were doing a film version of Shadowland. The same structure and arc . . . essentially the same progression of scenes. It used surmised dialogue from the book or the screenplay I had done, much of it word for word. It was totally the same vision.”

  One difference was a character expressly crafted for the film, inspired by a real-life private eye cited in Arnold’s book. Sam Shepard portrays the character in the film who became the stand-in for Arnold, who is the narrator of the events in the book.

  Brooksfilms sold the project to Universal. Much of Frances was subsequently shot on location in Seattle, adding to Arnold’s public humiliation. He was offered settlements but steadfastly refused them. Thus the Shadowland lawsuit became the rare Brooks legal case to actually wind up in a Los Angeles courtroom in February 1983.

  A law firm represented the author pro bono, so convinced was the firm that the facts were on their side and the potential payoff was great. The plaintiffs could prove Yates’s prior contractual relationship with Marshall and Arnold; they had witnesses to Brooks praising Shadowland as the best story source and “also the ace in the hole of the screenplay adaptation I had written and Yates had read,” in Arnold’s words, “which had more than the five points of similarity needed in a plagiarism suit: indeed
, whole scenes.”

  Though Arnold believed his legal team did their utmost and were like the “good guys” in a John Grisham thriller, they made one unwise decision, which was a late addition to their brief: they decided to characterize Shadowland as a “nonfiction novel”—that is, a nonfiction work of New Journalism with fictional elements. Categorizing it as a novel would strengthen their argument for copyright protection, they believed.

  The case was heard not by a jury but by a judge, Malcolm M. Lucas, a staunch conservative, later the chief justice of the California Supreme Court. Brooks’s flotilla of lawyers fixated on the “novelistic” definition, hammering away at the question of whether “nonobjective journalism or history written with the techniques and freedom of the novel deserve any of the copyright protection of fiction,” in Arnold’s words.

  Brooks was the star witness of the proceedings. “My heart sank when he took the stand because I could tell the judge was excited to see him there,” recalled Arnold. Although Brooks had been “nasty and defensive” earlier in the case, when deposed, his “whole manner changed [on the stand], and he was very deferential.” Through one entire day of testimony the king of Hollywood comedy was “incredibly humble and endearing. I was even liking him again. He made a very favorable impression on the judge.”

  Still and all, the plaintiffs’ lawyers thought they were bound to win the case on the merits. One month later, however, Judge Lucas ruled against them, dismissing the collusion charges and scolding Marshall and Arnold’s legal team “for the gall of arguing that a book that was widely regarded as nonfiction deserved the protection of fiction,” in Arnold’s words. “The tactic was even more of a misfire than I feared. It made the judge furious at us.”

  Arnold’s pro bono legal team decided they could no longer pursue his case on a contingency basis. Brooks’s lawyers offered to forgive their side of the court costs if there was no appeal; if Arnold and Marshall lost, they might have to bear all the costs. The case was over.