Lawyer fights over 'Switch' script, claiming it was his idea

January 17, 1994|By Marcia Myers | Marcia Myers,Staff Writer

Towson lawyer David J. Preller Jr. never considered himself a writer. But he thought up a lively comedy several years ago, committed it to paper, and shipped it to a film production company based at Warner Bros. in Burbank, Calif.

He didn't hear a word. When a year passed and he inquired about his manuscript -- which featured a young, handsome, sexist man who is transformed by a heavenly being and returns to Earth as a woman -- he was told that it wasn't to the producer's taste. The manuscript apparently had been lost or misplaced, an assistant said.

Cut to the Loews York Ridge IV theater two years later, as Mr. Preller settled in to watch Ellen Barkin and Jimmy Smits in "Switch," a movie about a young, handsome, sexist man who is transformed by a heavenly being and returns to Earth as a woman.

Many of the plot twists in the movie, which was distributed by Warner Bros., were eerily familiar to Mr. Preller. Twenty minutes into the movie, he knew it was his story, Mr. Preller says.

"It's nice somebody thought enough of it to use it," he says, recalling that showing in 1991. "I'm thrilled. But I should be compensated."

Now, Mr. Preller is suing Warner Bros., Blake Edwards, whom the movie credits as director and writer, a Home Box Office Inc. subsidiary that financed the project, and other defendants in federal court in Baltimore for $20 million.

In a letter last January, a lawyer for HBO and Mr. Edwards said they had never seen Mr. Preller's manuscript and denied using anything from it. Officials at Warner Bros. did not return phone calls for comment on the suit.

Mr. Preller, 46, who shares a small law practice with his father, says he spent evenings and weekends over two years scrawling his manuscript in longhand on yellow legal paper. He had represented several women in sexual discrimination suits, and the story idea developed as he tried to imagine sexist behavior from a woman's viewpoint.

"It was a walk-in-someone-else's-shoes idea," he says. "I did it on a lark. I thought it was something that could be humorous."

The stack of pages grew until it was about 3 inches high.

He even sketched an apartment floor plan for his main character and compiled a tape of classic rock tunes he thought might complement the story. Before mailing two copies of the script, which he titled "Mrs. Brown's Lovely Daughter," he registered a copyright on it.

To protect against charges of stealing story ideas or scripts, most major movie studios have strict policies against reading unsolicited material. The policy usually is to intercept the material and return it unread to the sender, said lawyers from several studios.

Still, some manuscripts filter through, and claims that filmmakers have stolen "intellectual property" are common.

"Generally the complaints fall into two categories: those that have some merit, and those by people who think they wrote 'Casablanca,' " said Scott Martin, a copyright lawyer at Paramount.

One well-publicized challenge was lodged by humorist Art Buchwald, who claimed that Paramount used his brief story outline to develop the Eddie Murphy movie "Coming to America."

In 1992, he won $750,000 from the studio.

His attorneys, who have given advice to Mr. Preller, referred the lawyer to a professional reader, someone who reads scripts for producers and summarizes the material.

In a 10-page report, the reader concluded that Mr. Preller had a strong case and listed 26 points of similarity between his manuscript and "Switch."

There is no matching dialogue. But the overall themes are identical, and the plots mirror each other at numerous points. The reader noted, for example, that in both stories the main character:

* Sees herself in a mirror after becoming a woman, and screams hysterically, attracting security guards. She then introduces herself as the sister of her former male persona.

* Manipulates her boss so she can return to the same job she held as a man. She uses a falsified note written on personal stationery to validate her new identity.

* Gets drunk, loses her memory and becomes pregnant by her best male friend.

* Receives subtle messages through classic rock tunes on the radio.

* Is at the mercy of a god or devil, who influences two heavenly creatures overseeing her fate.

Mr. Preller says his manuscript and a copy of the film should be about all the evidence a jury will need.

But he faces long odds in court. Attorneys specializing in such cases say very few succeed.

"Many [suits] are brought where there is very little merit," said Mary L. Kevlin, a nationally recognized copyright attorney in New York City.

To win, she said, Mr. Preller must prove that the people he's suing had access to his work, and that his story and "Switch" are substantially similar.

"You really have to compare," she said. "It's how the story line twists, how it is developed."

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