The Lawnmower Man

Film

Main Details
Premiere Date 1992-03-06
Countries
Alternative Titles
  • Le Cobaye (French)
  • Der Rasenmäher-Mann (German)
  • Газонокосильщик (Russian)
  • バーチャル・ウォーズ (Virtual Wars) (Japanese)
Category Feature Film
Genres
Credits
Director Brett Leonard
Actor Pierce Brosnan as Dr. Laurence Angelo
Actor Jeff Fahey as Jobe Smith
Actor Jenny Wright as Marnie Burns
Actor Geoffrey Lewis as Terry McKeen
Actor Jeremy Slate as Father Francis McKeen
Actor Austin O'Brien as Peter Parkette
Writer (Novel) Stephen King as (title only - credit removed after lawsuit)
Notes This is an adaptation of a Stephen King short story in title and one scene only. King eventually sued New Line Cinema in order to have his name removed from the film's title.

The film is commonly believed to have been written under the title "CyberGod", and elements of the Stephen King story included after the fact. In fact, it was written between May and August 1990 under the title "The Lawnmower Man", and filmed between May and June 1991. When King first saw the film on 3 March 1992, he called it "an extraordinary piece of work, at least visually", wished it success and recognised the elements of the original short story which were used in the screenplay, but did not initiate legal action against Allied Entertainment until 28 May.

In Japan, the film was titled "Virtual Wars", avoiding the controversy altogether.

Comments

fokkerTISM posted 1 month ago:

Here's the results of the lawsuit King filed against New Line (found on Google Groups):

Stephen KING, Plaintiff-Appellee,
v.
INNOVATION BOOKS, A DIVISION OF INNOVATIVE CORPORATION, Defendant,
Allied Vision, Ltd., New Line Cinema Corporation, Defendants-Appellants.

Nos. 2169, 2170, Dockets 92-7713, 92-7731.

United States Court of Appeals,
Second Circuit.

Argued Aug. 10, 1992.
Decided Oct. 1, 1992.

Author brought action under Lanham Act, seeking to enjoin producers and
distributors of movie bearing same title as his short story from using
either a possessory credit or a "based upon" credit associating author's
name with movie. The United States District Court for the Southern
District of New York, Constance Baker Motley, J., granted preliminary
injunction prohibiting any use of author's name on or in connection with
movie. Producer and distributor appealed. The Court of Appeals, Miner,
Circuit Judge, held that: (1) author was entitled to injunction
prohibiting distribution of movie with possessory credit, and (2) author
was not entitled to enjoin use of "based upon" credit.

Affirmed in part and reversed in part.

Cite as: 976 F.2d 824

MINER, Circuit Judge:

Defendants-appellants, Allied Vision, Ltd. and New Line Cinema
Corporation, appeal from an order of the United States District Court
for the Southern District of New York (Motley, J.) granting a
preliminary injunction in favor of plaintiff-appellee Stephen King in
connection with King's claims under the Lanham Act and New York law.
King, who is the author of such best-selling horror thrillers as The
Shining, Carrie and Salem's Lot, contended that Allied and New Line
falsely designated him as the originator of the motion picture "The
Lawnmower Man," which was produced by Allied and distributed in North
America by New Line. The injunction, which prohibits any use of King's
name "on or in connection with" the movie, encompasses two forms of
credit to which King objected: (i) a possessory credit, describing the
movie as "Stephen King's The Lawnmower Man," and (ii) a "based upon"
credit, representing that the movie is "based upon" a short story by
King. For the reasons that follow, we affirm the district court's order
to the extent that it prohibits use of the possessory credit, but
reverse the order to the extent that it prohibits use of the "based
upon" credit.

BACKGROUND

In 1970, King wrote a short story entitled "The Lawnmower Man" (the
"Short Story"). The Short Story, published in 1975 and running about ten
printed pages in length, involves Harold Parkette, a homeowner in the
suburbs. Parkette begins to neglect his lawn after an incident in which
the boy who usually mows his lawn mows over a cat. By the time Parkette
focuses his attention again on his overgrown lawn, the boy has gone away
to college. Parkette therefore hires a new man to mow his lawn. The
lawnmower man turns out to be a cleft-footed, obese and vile agent of
the pagan god Pan. The lawnmower man also is able to move the lawnmower
psychokinetically--that is, by sheer force of mind. After starting the
lawnmower, the lawnmower man removes his clothing and crawls after the
running mower on his hands and knees, eating both grass and a mole that
the mower has run over. Parkette, who is watching in horror, phones the
police. Using his psychokinetic powers, however, the lawnmower man
directs the lawnmower after Parkette, who is chopped up by the
lawnmower's blades after being chased through his house. The Short Story
ends with the discovery by the police of Parkette's entrails in the
birdbath behind the home.

In 1978, King assigned to Great Fantastic Picture Corporation the motion
picture and television rights for the Short Story. The assignment
agreement, which provided that it was to be governed by the laws of
England, allowed the assignee the "exclusive right to deal with the
[Short Story] as [it] may think fit," including the rights (i) to write
film treatments [and] scripts and other dialogue versions of all
descriptions of the [Short Story] and at all times to add to[,] take
from [,] use[,] alter[,] adapt ... and change the [Short Story] and the
title [,] characters[,] plot[,] theme[,] dialogue[,] sequences and
situations thereof.... (ii) to make or produce films of all kinds ...
incorporating or based upon the [Short Story] or any part or parts
thereof or any adaptation thereof. In return, King received an interest
in the profits of "each" film "based upon" the Short Story.

In February 1990, Great Fantastic transferred its rights under the
assignment agreement to Allied, a movie production company organized
under the laws of the United Kingdom and having offices in London. In
May 1990, Allied commissioned a screenplay for a feature-length film
entitled "The Lawnmower Man." The screenplay was completed by August
1990, and pre-production work on the movie began in January 1991. By
February 1991, Allied began to market the forthcoming movie by placing
advertisements in trade magazines and journals. The picture generally
was described as "Stephen King's The Lawnmower Man," and as "based upon"
a short story by King. Actual filming of the movie began in May 1991.
About one month later, Allied, through its United States subsidiary,
licensed New Line, a domestic corporation with offices in New York and
California, to distribute the movie in North America. The licensing
agreement was concluded in California, and a press release announcing
the distribution deal was issued from that state as well. New Line
initially paid $250,000 for the distribution rights, with an additional
$2.25 million to be paid thereafter.

King learned of the forthcoming movie in early October 1991, from an
article in a film magazine. He then contacted Rand Holston, an agent
handling King's film rights, in an attempt to gather information about
the film; asked Chuck Verrill, his literary agent, to obtain a "rough
cut" of the movie; and instructed Jay Kramer, his lawyer, to inform
Allied that King did not like the
idea of a possessory credit (a form of credit apparently portended by
the article).

By letter dated October 9, 1991, Kramer advised Allied that King "d[id]
not want" a possessory credit to appear on the film. Kramer also
requested a copy of the movie and the tentative movie credits King was
to receive. In another letter to Allied dated October 21, 1991--written
after Kramer secured a copy of the movie's screenplay--Kramer advised
that "we emphatically object" to the possessory credit contained in the
screenplay, and noted that he had yet to receive a copy of the tentative
credits.

It appears that King learned of New Line's involvement with the film in
November 1991. On King's direction, Verrill contacted New Line for a
copy of the film. Verrill was informed that a copy would not be
available until January 1992. Verrill contacted New Line again on
February 6, 1992, but this produced no copy of the film either. Kramer
and Holston shortly advised New Line, in a February 18, 1992 telephone
call with New Line's President of Production Sara Risher, that King was
"outraged" that the movie was being described as "Stephen King's The
Lawnmower Man."

In a February 28, 1992 letter, Kramer again insisted to Risher that the
possessory credit was a "complete misrepresentation," and attached
copies of the October 1991 letters sent to Allied. As of this time, New
Line had paid the balance of the price due to Allied for purchase of the
distribution rights, had expended about $7.5 million in advertising and
marketing costs, and
had become committed to release the movie in theaters throughout North
America.

On March 3, 1992--four days or so before release of the movie in
theaters--King viewed a copy of the movie in a screening arranged by
Allied and New Line. The protagonist of the two hour movie is Dr.
Lawrence Angelo. Experimenting with chimpanzees, Dr. Angelo develops a
technology, based on computer simulation, known as "Virtual Reality,"
which allows a chimp to enter a three-dimensional computer environment
simulating various action scenarios. Dr. Angelo hopes to adapt the
technology for human use, with the ultimate goal of accelerating and
improving human intelligence. Eventually, Dr. Angelo begins
experimenting with his technology on Jobe, who mows lawns in Dr.
Angelo's neighborhood and is referred to as "the lawnmower man." Jobe, a
normal-looking young man, is simple and possesses a childlike mentality.
Dr. Angelo is able greatly to increase Jobe's intellect with Virtual
Reality technology. However, the experiment spins out of control, with
Jobe becoming hostile and violent as his intelligence and mental
abilities become super-human. In the build-up to the movie's climax,
Jobe employs his newly acquired psychokinetic powers to chase Dr.
Angelo's neighbor (a man named Harold Parkette) through his house with a
running lawnmower, and to kill him. The police discover the dead man's
remains in the birdbath behind his home, and, in the climax of the
movie, Dr. Angelo destroys Jobe.

The film and advertising seen by King contained both possessory and
"based upon" credits. On the evening of March 3, after viewing the film,
King wrote to Holston:

łI think The Lawnmower Man is really an extraordinary piece of work, at
least visually, and the core of my story, such as it is, is in the
movie. I think it is going to be very successful and I want to get out
of the way. I want you to make clear to [the] trolls at New Line
Pictures that I am unhappy with them, but I am shelving any ideas of
taking out ads in the trades or trying to obtain an injunction to stop
New Line from advertising or exploiting the picture. I would like to
talk to you late this week or early next about doing some brief
interviews which will make my lack of involvement clear, but for the
time being, I am just going to step back and shut up.˛

In a March 23, 1992 letter, Kramer again advised Allied of King's "long
standing objection" to the possessory credit, and also took note of "the
apparent failure of [Allied] to inform New Line of Mr. King's objection
until the movie was about to be released." However, no objection to the
"based upon" credit ever was registered until May 20, 1992. From March
through May 1992, New Line expended another $2.5 million in promotion
and entered into certain hotel movie and television commitments, as well
as home video arrangements.

King initiated the instant suit on May 28, 1992, seeking damages as well
as injunctive relief. He claimed that the possessory and "based upon"
credits violated section 43(a) of the Lanham Act, see 15 U.S.C.
1125(a), as well as the New York common law of unfair competition and
contracts, the New York General Business Law, and the New York Civil
Rights Law. A motion for preliminary injunction was made on June 3, and
a hearing was held on June 29.

The district court agreed with King on all of his claims and granted the
injunction on July 2, concluding that the possessory credit was false on
its face, that the "based upon" credit was misleading, and that the
irreparable harm element of a preliminary injunction action had been
satisfied. The equitable defenses of laches, estoppel and waiver
interposed by Allied and New Line were rejected.

The injunction prohibited use of King's name "on or in connection with"
the motion picture, and by its terms encompassed both the possessory and
"based upon" credits. The injunction applied to distribution of the film
by Allied abroad as well as by New Line in North America, either in
theaters or on videocassette or on television. We granted appellants'
application for a stay pending this expedited appeal, but conditioned
the stay upon suspension of use of the possessory credit. At oral
argument, counsel for New Line informed us that the videocassettes of
the movie now in circulation contain only the "based upon" credit.

DISCUSSION

We review a district court's issuance of a preliminary injunction for
abuse of discretion. Carew-Reid v. MTA, 903 F.2d 914, 916 (2d Cir.1990)
(citations omitted). Such an abuse of discretion ordinarily consists of
either applying an incorrect legal standard or relying on a clearly
erroneous finding of fact. Procter & Gamble Co. v. Chesebrough-Pond's
Inc., 747 F.2d 114, 118 (2d Cir.1984) (citation omitted). As the
district court observed, a party such as King seeking an injunction
"must demonstrate (1) irreparable harm should the injunction not be
granted, and (2) either (a) a likelihood of success on the merits, or
(b) sufficiently serious questions going to the merits and a balance of
hardships tipping decidedly toward [that] party...." Resolution Trust
Corp. v. Elman, 949 F.2d 624, 626 (2d Cir.1991); Coca-Cola Co. v.
Tropicana Products, Inc., 690 F.2d 312, 314-15 (2d Cir.1982).

I. Likelihood of Success on the Merits

The district court correctly noted that a false reference to the origin
of a work, or a reference which, while not literally false, is
misleading or likely to confuse, may form the basis of a claim under
section 43(a) of the Lanham Act. See 15 U.S.C. 1125(a) (1988)
(prohibiting use in commerce of "any false designation of origin, false
or misleading description of fact, *829 or false or misleading
representation of fact" which is "likely to cause confusion ... or to
deceive as to [ ] affiliation, connection, or association"); Gilliam v.
American Broadcasting Companies, Inc., 538 F.2d 14, 24-25 (2d Cir.1976).

A. The Possessory Credit

We perceive no error in the district court's conclusion that King is
likely to succeed on the merits of his objection to the possessory
credit. The district court was entirely entitled to conclude, from the
testimony at the preliminary injunction hearing, that a possessory
credit ordinarily is given to the producer, director or writer of the
film; and that the credit at a minimum refers to an individual who had
some involvement in, and/or gave approval to, the screenplay or movie
itself. In contrast to other films for which he has been given a
possessory credit, King had no involvement in, and gave no approval of,
"The Lawnmower Man" screenplay or movie.

Under the circumstances, therefore, the arguments advanced by Allied and
New Line as to why the possessory credit is not false--that the other
movie credits make clear that King was not the producer, director or
writer of the film, and that King has in the past received a possessory
credit where he merely approved in advance of the screenplay or
movie--do not alter the conclusion that King is likely to succeed on his
challenge to the possessory credit. Appellants also contend that King
offered no evidence of public confusion in relation to the possessory
credit. As will be detailed in our discussion of irreparable harm,
however, there was some such evidence offered. In any event, as the
district court recognized, no evidence of public confusion is required
where, as is the case with the possessory credit, the attribution is
false on its face. See PPX Enterprises, Inc. v. Audiofidelity
Enterprises, Inc., 818 F.2d 266, 272 (2d Cir.1987) (citations omitted).

B. The "Based Upon" Credit

As the district court recognized, a "based upon" credit by definition
affords more "leeway" than a possessory credit. The district court
nevertheless concluded that the "based upon" credit at issue here is
misleading and likely to cause confusion to the public, reasoning in
essence that the "climatic scene from the [S]hort [S]tory is inserted
into the film in a manner wholly unrelated to the plot of the film," and
that the credit "grossly exaggerates" the relationship between the Short
Story and the film. While particular findings of fact are subject to the
clearly erroneous standard of review, we have said that the weighing of
factors in "the ultimate determination of the likelihood of confusion is
a legal issue subject to de novo appellate review." Hasbro, Inc. v.
Lanard Toys, Ltd., 858 F.2d 70, 75-76 (2d Cir.1988) (citations omitted)
(Lanham Act trade mark claim). We believe that in so heavily weighing
the proportion of the film attributable to the Short Story in the course
of finding the "based upon" credit to be misleading and confusing, the
district court applied a standard without sufficient support in the
testimony and applicable law.

John Breglio, an attorney of the law firm of Paul, Weiss, Rifkind,
Wharton & Garrison specializing in entertainment law, testified as an
expert witness for King. Breglio opined that the term "based upon," in
the context of royalty obligations under King's assignment agreement,
was not identical to the term "based upon" in a movie credit. After
speaking of a test of "substantial similarity" between the literary work
and movie, and opining that there was not substantial similarity between
the Short Story and the film, Breglio went on to state that the industry
standard for determining the meaning of a "based upon" movie credit is
very similar to that used by copyright lawyers in examining issues of
copyright infringement. Breglio further explained that this standard
involved looking "at the work as a whole and how much protected material
from the underlying work appears in the derivative work." (emphasis
added) Indeed, in cases of alleged copyright infringement it has long
been appropriate to examine the quantitative and qualitative degree to
which the allegedly infringed work has been borrowed from, and not
simply the proportion of the allegedly infringing work that is made up
of the copyrighted material. See Harper & Row v. Nation Enterprises, 471
U.S. 539, 565-66, 105 S.Ct. 2218, 2233, 85 L.Ed.2d 588 (1985) (citing
Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 56 (2d Cir.) (L.
Hand, J.), cert. denied, 298 U.S. 669, 56 S.Ct. 835, 80 L.Ed. 1392
(1936)). Accordingly, the propriety of the "based upon" credit should
have been evaluated with less emphasis on the proportion of the film
attributable to the Short Story, and with more emphasis on the
proportion, in quantitative and qualitative terms, of the Short Story
appearing in the film. Where a movie draws in material respects from a
literary work, both quantitatively and qualitatively, a "based upon"
credit should not be viewed as misleading absent persuasive
countervailing facts and circumstances. Our concern is the possibility
that under the district court's apparent approach, substantially all of
a literary work could be taken for use in a film and, if unrelated
ideas, themes and scenes are tacked on or around the extracted work, a
"based upon" credit would be deemed misleading.

In the case before us, the apparent "core" of the ten page Short Story--
a scene in which a character called "the lawnmower man" uses
psychokinetic powers to chase another character through his house with a
running lawnmower and thereby kill him--is used in the movie. In both
the movie and the Short Story, the remains of the murdered man (who is
named Harold Parkette in both works) are found in the birdbath by the
police; the two police officers in both works have the same names and
engage in substantially similar dialogue. As King himself described it,
"the core of my story, such as it is, is in the movie." The red
lawnmower seen in the movie also appears to be as described in the Short
Story. A brief reference to the Pan mythology of the Short Story appears
in the movie as well; dialogue between Jobe and another character
includes a reference to "Pan pipes of the little people in the grass."

We recognize that several important and entertaining aspects of the
Short Story were not used in the film, and that conversely the film
contains a number of elements not to be found in the Short Story.
However, when the resemblances between the Short Story and the motion
picture at issue here are considered together, they establish to our
satisfaction that the movie draws in sufficiently material respects on
the Short Story in both qualitative and quantitative aspects.

Nor are there any persuasive countervailing facts or circumstances in
the record to lead us away from the conclusion that the "based upon"
credit is proper in this case. King himself apparently was not bothered
much (if at all) by the "based upon" credit, in marked contrast to his
sustained and strong objections to the possessory credit, until shortly
before he initiated this suit. He has not pointed us to evidence in the
record of industry or public perception of, or confusion over, the
"based upon" credit beyond the thoughts offered by Breglio. Professor
George Stade, Vice Chairman of the English Department at Columbia
University and King's other expert witness, did opine that, despite
similarities, the movie was not based upon the
Short Story. However, even Professor Stade indicated at one point in his
testimony that "substantial" portions of the Short Story appear in the
film.

In Gilliam v. American Broadcasting Companies, Inc., 538 F.2d 14 (2d
Cir.1976), we found a violation of section 43(a) by the ABC television
network, which had aired, under license from the BBC, the "Monty
Python's Flying Circus" programs of the British comedy group. Monty
Python's agreement with the BBC gave the comedy group substantial
control over any editing by the BBC. See id. at 17. However, ABC on its
own substantially edited the programs it aired under the BBC license, so
as to eliminate many thematically essential and humorous portions of the
original programs. See id. at 24- 25 & n. 12. King suggests, in
disputing the legitimacy of the "based upon" credit, that Allied's
treatment of the Short Story is analogous to ABC's editing in Gilliam.

However, at issue in Gilliam were original Monty Python programs which
were edited by ABC and then rebroadcast as Monty Python's work. We
specifically noted that Monty Python was being "present[ed] to the
public as the creator of a work not [its] own, and [made] subject to
criticism for work [it] has not done." Id. at 24 (quotation omitted).
While Gilliam certainly supports the view we have taken of the
possessory credit, the case is not very helpful in evaluating the
accuracy of a "based upon" credit, which by definition deals with
altered and derivative works.

It is undoubtedly the case that King's assignment agreement does not
permit Allied to use King's name fraudulently, and we express no view as
to the degree of overlap between the term "based upon" in the King
assignment agreement and the term "based upon" in a theatrical credit.
However, we do note that the agreement contemplates substantial
alterations to the Short Story, and even obligates Allied to give King
credit in the case of a film "based wholly or substantially upon" the
Short Story. We think that King would have cause to complain if he were
not afforded the "based upon" credit.

II. Irreparable Harm

As the district court observed, a presumption of irreparable harm arises
in Lanham Act cases once the plaintiff establishes likelihood of success
on a claim of literal falseness, as King has established with respect to
the possessory credit. See McNeil-P.C.C., Inc. v. Bristol-Myers Squibb
Co., 938 F.2d 1544, 1548-49 (2d Cir.1991) (citation omitted); cf. Church
of Scientology Int'l v. Elmira Mission of the Church of Scientology, 794
F.2d 38, 41-42 (2d Cir.1986) (except in "rare cases," irreparable harm
"almost inevitably" follows from likelihood of confusion). Nothing in
the record persuades us that the district court erred in concluding that
this presumption was not rebutted.

Appellants contend that any presumption of irreparable injury was
rebutted because King delayed in seeking relief. However, the greatest
conceivable delay attributable to King is about eight months: from early
October 1991, when he first learned of the movie, to early June 1992,
when he moved for a preliminary injunction. During that time, however,
King, through his
agents, contacted Allied and New Line and repeatedly objected to any use
of a possessory credit, and attempted to obtain the screenplay,
tentative credits and film for viewing. This is not conduct that
undercuts a sense of urgency or of an imminent threat, and indeed the
circumstances in this case contrast with those in which we have found a
delay negating the presumption of irreparable harm.

In Citibank, N.A. v. Citytrust, 756 F.2d 273 (2d Cir.1985), for example,
we held that an irreparable harm presumption was negated where New
York's Citibank delayed bringing suit for nine months after having
notice that Connecticut's Citytrust intended to open a branch in the New
York area. We pointed out that Citibank made no effort to verify the
opening of Citytrust's branch, made no objection concerning the branch,
and had made no real objection to Citytrust's advertising in New York
media markets in past years. See id. at 276-77; see also Majorica, S.A.
v. R.H. Macy & Co., 762 F.2d 7, 8 (2d Cir.1985) (per curiam)
(irreparable harm negated where plaintiff delayed for "several years" in
bringing trade name suit despite awareness of competitor's allegedly
infringing conduct, made no complaint to competitor during that time,
and did not move for preliminary injunction until seven months after
suit filed). Also to be considered is that a great deal of King's
alleged delay was attributable to problems in acquiring a copy of the
film from appellants. See Horgan v. MacMillan, Inc., 789 F.2d 157, 164
(2d Cir.1986) (expressing doubt that plaintiff delayed unduly in seeking
preliminary injunctive relief where only "general intentions" of alleged
copyright infringer were known and plaintiff had trouble obtaining
advance copy of alleged infringer's
work).

The March 3 letter written by King to Rand Holston, in which King
indicated that he was impressed by the movie and that he was "shelving"
legal action, together with apparently similar remarks made by King to
counsel at that time, could be viewed as countering an irreparable harm
presumption. However, the district court did not accept this argument,
and we are unable to find error in this under all the circumstances.
While King refers in the letter to shelving action against New Line's
advertising of the picture, King does not say in the letter that he is
shelving action against Allied or action in relation to the credits
appearing in the movie itself. Further, because of the references in the
letter to "at least for the time being" and "at this time," King's
reactions as of March 3 could be viewed as tentative in nature. Indeed,
shortly after King's March 3 letter was written, Kramer again wrote to
Allied to reiterate King's "long standing objection" to the movie's
possessory credit.

Appellants also suggest that the presumption of irreparable harm was
rebutted because King himself enjoyed the movie, continues to be a
popular literary figure, and was unable to specify particular financial
injury. However, we have observed that the irreparable harm in cases
such as this often flows not so much from some specific reduction "in
fact" to an individual's name or reputation, but rather from the
wrongful attribution to the individual, in the eye of the general
public, of responsibility for actions over which he or she has no
control. See Church of Scientology, 794 F.2d at 44 (citation omitted);
see also Gilliam, 538 F.2d at 25 (irreparable harm where through
substantial editing ABC "impaired the integrity of [Monty Python's] work
and represented to the public as the product of [Monty Python] what was
actually a mere caricature of [its] talents").

In this connection, King testified to the obvious point that his name
and artistic reputation are his major assets, and offered into evidence
certain unfavorable reviews of the movie. These reviews tended to
discuss the movie in possessory terms and portray the work as a kind of
failure on the part of King personally--persuasive evidence of the type
of damage and confusion caused by the possessory credit. One reviewer,
for instance, who thought the movie uninspiring, commented
sarcastically: "Coming next week to a theater near you: Stephen King's
Grocery List." Another review began with the statement that "Steven
[sic] King's latest film, The Lawnmower Man, continues to reinforce the
impression that he and Hollywood just don't work well together."

III. Laches

A party asserting the equitable defense of laches must establish both
plaintiff's unreasonable lack of diligence under the circumstances in
initiating an action, as well as prejudice from such a delay. See
Southside Fair Housing Committee v. City of New York, 928 F.2d 1336,
1354 (2d Cir.1991) (citation omitted); Lottie Joplin Thomas Trust v.
Crown Publishers, Inc., 592 F.2d 651, 655 & n. 4 (2d Cir.1978). The
district court used March 3, 1992--the date King viewed the film--as the
baseline from which to evaluate the laches question in this case. The
district court concluded, using this date, that a mere three month delay
in bringing suit was not unreasonable, and that prejudice also was
absent because appellants had entered into the great majority of their
commitments in connection with the movie by March 3. According to Allied
and New Line, however, King knew everything he needed to know to assert
his rights by October 1991, when a copy of the screenplay (with credits)
was obtained. Appellants argue, therefore, that October 1991 is the
proper time from which to consider the laches question, and note that
many commitments were made, and much money expended, after that time.

The issue of laches is committed to the discretion of the district
court, see Dickey v. Alcoa Steamship Co., 641 F.2d 81, 82 (2d Cir.1981)
(citations omitted), and we see no abuse of that discretion here. King
could not be certain about what the film would contain--the film credits
lying at the heart of this dispute--until he actually viewed a copy of
the film. Indeed, in the very same letter of October 21 in which he
acknowledged having the screenplay, Kramer specifically complained that
he had not yet seen the tentative film credits. Accordingly, October
1991 does not seem to us to be a useful date at which to draw a
baseline. See Gilliam, 538 F.2d at 18, 25 (Monty Python group feared in
early September that programs could be edited by television network, and
first of programs so edited aired in early October; but no laches where
the group did not actually see tape of the edited program until late
November, objected to network promptly thereafter, and commenced suit
after discussions failed); see also Horgan, 789 F.2d at 164.

Even if the October 1991 date were to be used, we would not be willing
to say that King unreasonably delayed in initiating this suit, in light
of his conduct and the history of the parties prior to commencement of
the suit. As mentioned previously, King objected to the possessory
credit to Allied as soon as he learned of the film in October 1991. He
attempted at that time to obtain the screenplay, tentative credits, and
a copy of the movie. He continued to voice his objections to what seemed
planned by appellants and attempted to become fully informed and resolve
the matter. Even taking into account the March 3 letter to Holston, King
did not encourage or acquiesce in the use of a possessory credit.
Compare Southside Fair Housing, 928 F.2d at 1355 (14 month delay in
bringing suit; laches established where plaintiffs either supported
actions later sued upon or "essentially stood mute" in "protracted
silence").

New Line argues that while King may have objected to Allied in a timely
fashion, King did not make his objections known to New Line itself until
much later, in February 1992. However, it seems that Allied--the actual
producer of the movie and the licensor of New Line--was the appropriate
party to contact. New Line itself appears to have been of this same
view, as evidenced by an internal New Line memorandum. The memo, written
by Sara Risher to Sandra Ruch, another New Line executive, recorded the
contents of the February 18 telephone call during which King's agents
complained to New Line of the possessory credit. Risher told the agents
that "this was a problem [King] should have dealt with the producers
[Allied] on and that the producers represented to us we had this right."

The district court also found that appellants together delayed King's
viewing of the film. This finding was supported by the evidence. A
January 17, 1992 letter from Peter McRae of Allied to Sandra Ruch, for
example, indicated that any "approach" to King had to be "carefully
considered" in light of "the potential benefits we may gain." Ruch
handwrote on this letter that "[w]e don't want S King to see it [the
movie] before opening date." This kind of "unclean hands" behavior
confirms our belief that there was no abuse of discretion in the
district court's rejection of the equitable defense of laches.

IV. New York Law and Jurisdictional Claims

We have considered the various New York law claims made by King and
accepted by the district court, and have concluded that the results we
reach in this case under the Lanham Act are the same under the
applicable New York law. We have also considered appellants' remaining
arguments--including the contention that this case should be assigned to
another judge and Allied's claim that the district court was without
jurisdiction to enjoin foreign distribution of the movie--and found them
to be without merit.

CONCLUSION

The order of the district court granting a preliminary injunction is
affirmed to the extent it prohibits use of the possessory credit, but
reversed to the extent it prohibits use of a "based upon" credit.

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