Stephenson was referring to his own screenplay “Frisco,” a drama centered on a world-weary middle-aged children’s doctor and the 15-year-old patient he gets stuck looking after, and David Hemingson’s “The Holdovers” — a drama revolving around a world-weary middle-aged boarding school teacher and the 15-year-old pupil he gets stuck looking after. In the latter, that teacher is Paul, played by Paul Giamatti in a beloved performance that has him vying for best actor honors. Back in 2013, “Frisco” was one of the hottest screenplays in town when it landed at No. 3 on the Black List, an annual survey of Hollywood’s best unproduced screenplays founded by Franklin Leonard. “The Holdovers,” of course, is Alexander Payne’s critically acclaimed Focus Features film that nabbed five Oscar nominations including one for best original screenplay, where it is considered a frontrunner heading into Sunday’s ceremony, locked in a tight race with Justine Triet and Arthur Harari’s “Anatomy of a Fall.” With voting already closed, Hemingson could become the third screenwriter of a Payne-directed film to win a screenplay Oscar. (Payne himself won adapted screenplay for “Sideways” and “The Descendants.”)
Payne and Hemingson declined comment. Stephenson confirmed the authenticity of the emails but declined further comment.
Stephenson’s complaint kicked off a protracted back and forth between the writer and his guild that continued through this week without resolution. Variety has reviewed correspondence between several WGA staffers and the British writer — whose biggest current project is an adaptation of his own novel, “Set My Heart to Five,” which is set up at Working Title and Universal with Edgar Wright attached to direct — as well as documents that were shared with the guild’s three officers, 16-member board and general counsel.
Screenwriter Simon Stephenson
Courtesy of HarperCollins
At the heart of Stephenson’s complaint is the contention that Payne had the “Frisco” script in both 2013 and again in late 2019, right before Payne approached Hemingson about collaborating on a project. That contention seems to be backed up by emails involving several Hollywood agencies and producers. On Aug. 28, 2013, Verve founder Bryan Besser sent an email to a number of people including Stephenson that said, “Quick update: We gave FRISCO to Alexander Payne’s producing partner Jim Burke whom we took to lunch yesterday. Our opinion is that in an ideal world this is the best way into Searchlight.” Four months later, UTA’s Geoff Morley seemed to indicate that Payne had read “Frisco,” writing: “I spoke to Alexander Payne’s exec Jim Burke directly a while back and he said that Payne did like it but was not interested in prod or directing it.”
Fast forward to 2019, when “Frisco” appeared to be finding a second life — with Brightstar’s John Woodward and producer Tanya Seghatchian, the duo behind Jane Campion’s Oscar-nominated “The Power of the Dog,” taking the project to Netflix. Top executive Lisa Nishimura, who left Netflix last year, then brought the script to Payne. On Dec. 6, 2019, Woodward wrote to Stephenson and Seghatchian: “Sorry to say that Alexander has now read but says it is not quite what he is looking for. Might be worth following up with [Bob Odenkirk]. Netflix’s interest was predicated on Alexander but Odenkirk might be of interest to them too – do you want us to sound them out ? Or there is still Krasinski possibly. Keen to know your thoughts….”
Over the past two months, these emails have been passed around by a few high-profile people in the industry as Stephenson made his case to the WGA — and Variety has reviewed them. And though Hemingson is the sole credited writer on “The Holdovers,” Payne has acknowledged in multiple awards-season interviews that he shaped the script. (During a press conference at the Thessaloniki Film Festival in November, Payne said, “I got involved in the script, although I don’t take credit for it.” For his part, Hemingson has an atypical career trajectory for an Oscar-nominated writer. He was an entertainment attorney at Loeb & Loeb before becoming a TV writer in the mid-‘90s. “The Holdovers” marks his feature film debut.
Not long after the 2019 email from Woodward to Stephenson and Seghatchian, Payne and Hemingson began working together on “The Holdovers.” The most detailed retelling of the project’s genesis took place during an interview on “The Rough Cut” podcast in November that featured Payne and the film’s editor, Kevin Tent. Payne said: “I had the idea for the movie — that I stole from a 1935 French movie I’d seen at a film festival about a dozen years ago — and I thought ‘That’s a good premise for a movie.’ Not the story, how it pans out, but the premise. And so I was sitting on this premise for years thinking ‘Oh, I’ve got to go, you know, out to Eastern prep school some day and research that idea because I’m not from that world. And then about five years ago, I received, completely randomly, a TV pilot set at a boarding school. So that’s when I called up [Hemingson] and I said, ‘Hey, you’ve written a great pilot. I don’t want to do it. But would you consider writing a story for me, set in that same world?’ — that’s how it happened.” Tent then interjected, I think you had like 45 pages, right, when I first read the … ” Payne interrupted, “Could be — because, because David was sharing, you know, portions of drafts with me during his process.” The director added, “I had the idea, we hashed out the idea tog- I mean the story idea together. He would send me different versions of what the story could be and then I could say yes or put the kibosh on it or whatever, and then we kind of hashed it out together.”
Ultimately, “The Holdovers” was independently financed on a $13 million budget. It was a negative pickup for Focus, which bought “The Holdovers” for $31 million at the Toronto Film Festival, marking the biggest worldwide rights deal ever at that market. Unusually, Hemingson received a full producing credit on “The Holdovers,” a rarity for a screenwriter, let alone a first-timer.
In recent weeks, after Stephenson’s exchange with Mackey went nowhere, he shot off an email on Feb. 25 to the WGA board with the subject line: “An urgent plea for help from a WGA writer in a truly extraordinary situation.” He wrote, “I can demonstrate beyond any possible doubt that the meaningful entirety of the screenplay for a film with WGA-sanctioned credits that is currently on track to win a screenwriting Oscar has been plagiarised line-by-line from a popular unproduced screenplay of mine. I can also show that the director of the offending film was sent and read my screenplay on two separate occasions prior to the offending film entering development. By ‘meaningful entirety’ I do mean literally everything- story, characters, structure, scenes, dialogue, the whole thing. Some of it is just insanely brazen: many of the most important scenes are effectively unaltered and even remain visibly identical in layout on the page.”
He continued: “I’ve been a working writer for 20 years – in my native UK before I came to the US – and so I’m very aware that people can often have surprisingly similar ideas and sometimes a few elements can be ‘borrowed’ etc. This just isn’t that situation. The two screenplays are forensically identical and riddled with unique smoking guns throughout.”
In the email, Stephenson indicated that Mackey had told him that the WGA wouldn’t get involved in the matter because “Frisco” had been written on spec. He also shared three documents to press his case. Board member Scott Alexander then referred Stephenson to WGA West associate counsel Leila Azari. (One of the documents is embedded below.)
An email and phone exchange between Stephenson and Azari ensued, lasting several days, in which Stephenson argued that the WGA constitution covers “the existential dangers of this style of plagiarism by transposition” as stated in Section 5 of its bylaws. He continued, “This may be the best chance the Guild will ever have to improve the current dismal situation of the complete lack of meaningful protection against plagiarism by transposition for working writers, and to guard against a looming existentially catastrophic situation.”
Azari appeared sympathetic, but still made clear that this was not a guild issue, even though Stephenson, Hemingson and Payne are all members, and “The Holdovers” is also nominated for a WGA Award. On March 4, Azari wrote: “Claims related to plagiarism and/or copyright infringement are not arbitrable under the MBA. You and I also discussed Article X of the Guild Constitution. Plagiarism and copyright infringement actions necessarily require extensive fact finding and discovery, which would not be available to you in an Article X proceeding. Further, an Article X proceeding could not provide the relief that you are seeking; namely, recognition of your authorship of the screenplay and/or monetary compensation from [‘The Holdovers’ financier] Miramax. A lawsuit remains the most viable option under the circumstances.” She then referred Stephenson to boutique law firm in Los Angeles.
On March 5, two additional board members reached out to Stephenson and said that the matter was still being discussed internally, indicating that the case had sparked debate within the WGA. At least one of the officers found the allegations unsettling, according to the correspondence. But it is unclear where the case currently stands within the guild. The board did not respond to multiple requests for comment from Variety.
Over the past few weeks, word began to spread that Stephenson was agitating for a WGA investigation just as the Oscar campaign for “The Holdovers” was in full swing. Historically, screenplay plagiarism cases — at least those that reach the public eye — have been somewhat rare. The most famous case took place when humorist Art Buchwald sued Paramount over the Eddie Murphy comedy “Coming to America.” Buchwald prevailed in a seven-year legal saga and was awarded $825,000. More recently, the estate of the late playwright Paul Zindel accused Guillermo del Toro of lifting elements from Zindel’s play “Let Me Hear You Whisper” for his Oscar-winning film “The Shape of Water” and sued for copyright infringement. The case was dismissed. The legal definition of plagiarism is broad and ambiguous, and boils down to unacknowledged copying. But some see the “Frisco”-“Holdovers” dustup as a sign of what is to come with technology becoming more sophisticated at pattern recognition.
“This is a case that’s going to have everybody trembling, because you can or soon can just push buttons and put scripts into AI programs and compare everything,” says one Hollywood player familiar with Stephenson’s allegation. “They’re hard cases to win. And so there are kind of no winners in them because they’re expensive and ugly and they spook people. I think that’s probably why Simon is trying to get the WGA to help him.”
In an added layer of awkwardness, Payne is one of the top indie director clients at CAA, the same agency that represents Stephenson. Hemingson is handled by WME. On Sunday, “The Holdovers” will also compete for the original screenplay honors against “Maestro” (Bradley Cooper & Josh Singer), “May December” (Samy Burch; story by Samy Burch & Alex Mechanik) and “Past Lives” (Celine Song).
While making his case, Stephenson claimed that there are only a few elements in “The Holdovers” that bear no relation to “Frisco.” In an ironic twist, one of those so-called unique elements is a scene in which Giamatti’s Paul recounts a story about a powerful person with “allies on the faculty” who had gotten away with plagiarism, negatively changing the trajectory of Paul’s life — and turning him into the misanthrope he is in “The Holdovers.”
From Variety US