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'Blair Witch' actors sue film's distributor

By Steve Irsay
Court TV

Actress Heather Donahue in
Actress Heather Donahue in "The Blair Witch Project."

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(Court TV) -- Three centuries after the proceedings at Salem, a new witch trial is brewing.

There will be no trips to the gallows this time, but the three stars of the 1999 low-budget blockbuster "The Blair Witch Project" are heading to court, claiming that the film's distributor Artisan Entertainment used their names and likenesses without permission in connection with the film's sequel, "Book of Shadows: Blair Witch 2."

Unknowns-turned-cult stars Heather Donahue, Michael Williams and Joshua Leonard filed a complaint in November 2000 seeking over $4 million each for the damage they say the unauthorized references did to their burgeoning screen careers.

In May, a judge denied Artisan's motion to have the suit dismissed, setting the stage for this Hollywood-style witch trial.

While this sequel squabble is rather unique, allegations of image splicing and false advertising have been made before by figures like Bill Clinton and Kevin Costner.

A film that cast its spell

"The Blair Witch Project" cast a spell on movie goers unlike anything before or since. Without a script and a budget of $35,000, two unknown filmmakers turned shaky home video into a blockbuster that raked in over $140 million domestically and reigned as the highest grossing independent film of all time until "My Big Fat Greek Wedding" surpassed it recently.

A savvy Web marketing campaign turned many moviegoers into believers in the film's eerie premise that it was a documentary pieced together from the recovered footage of three student filmmakers who disappeared in the Maryland woods searching for a deadly 200-year-old witch.

"It had a huge impact," said Paul Dergarabedian, president of Exhibitor Relations Company, which tracks box office activity. "It was really a film that everyone became instantly fascinated by and it emboldened filmmakers and studios to believe that if you had the right concept and a great marketing campaign, it did not matter what the budget of the movie was."

Donahue, Williams and Leonard signed on to play the ill-fated characters of the same names in the mock-documentary back in October 1997 with Haxan Films, the company started by the unknown writers and directors of "The Blair Witch Project." The venture proved to be an exercise in method acting unlike anything Stanislavsky likely imagined.

About a week shy of Halloween, directors Daniel Myrick and Eduardo Sanchez dropped Donahue, Williams and Leonard off in a wooded patch of Maryland state park. Like the hopelessly stranded filmmakers they were portraying, the trio had only camping gear and two cameras which they used to film themselves.

There was no script and each day the directors left food, fresh camera batteries and basic directions in a milk crate. The actors became increasingly cold, hungry and angry -- just like their characters were supposed to be.

Filming was wrapped in six days and Haxan hoped they had something that they could sell to a video distributor or to a cable station. In January 1999, the witch flick opened to mixed reactions at the Sundance Film Festival. While industry heavy weights passed on the grainy film, independent producer and distributor Artisan Entertainment snatched up the worldwide rights for $1 million. Rivals mocked that the price was scarier than the film itself.

Outfitted with a marketing campaign that included a faux-investigative TV special and a Web site containing bogus police reports about the disappearances of the young filmmakers, the movie set records as it scared and confused audiences worldwide and spawned spin-offs including books and action figures. Donahue, Williams and Leonard, each initially paid only $1000 for their performances, were gracing magazine covers and talk show couches.

Chasing a sequel: Blair Witch II

When Artisan purchased the rights to "The Blair Witch Project" from Haxan, they also bought the rights to make spin-offs and sequels. Seeking to capitalize on their unlikely hit, Artisan quickly released the $15 million dollar sequel, "Book of Shadows: Blair Witch 2."

The film itself plays on the Blair Witch phenomenon, depicting a group of fans who head into the same haunted Maryland woods. The follow-up sought out the same blurred line between fact and fiction but it failed to bewitch audiences like the original and brought in a disappointing $27 million domestically. Donahue, Williams and Leonard, whose characters met their fate in the original, were not approached to take part in "Book of Shadows."

To their surprise, though, the original trio was still a part of the new franchise. Clips of them appeared in the sequel for about seven seconds, according to court papers. In addition, their images were used in theater displays, electronic press kits, Web sites, books and two television specials related to the second film.

The dispute

A few weeks before the scheduled opening of "Book of Shadows" in October 2000, Donahue rounded up her co-stars and got a lawyer in an unsuccessful bid to block the release of the film and get paid for the allegedly unauthorized appearances.

Artisan refused, arguing that the original acting contracts inherited from Haxan granted them the rights to use the characters' names and likenesses in any Blair Witch-related way that they wished.

The actors filed suit against Artisan claiming that they never "granted any rights whatsoever to Artisan to use their names, pictures, portraits or voices in connection with Blair Witch 2" and as a result of the uses they suffered "severe damage to their commercial reputation," according to court papers.

"Can you think of any movie where there was a sequel to a movie where actors from the first one who were not in the second are used to promote it?" plaintiff's attorney Phil Hoffman told Court TV. "It just does not happen that way."

Artisan contends that the inexperienced trio are attempting to "rewrite their contracts now, after the movie has become such an enormous success" in a money-hungry witch hunt for rights that they originally signed away.

"This case is not about industry practices," Artisan lawyer Andrew Frackman said to Court TV. "It's about the rights Artisan has under the acting agreements the plaintiffs entered into, the benefits of which were assigned to Artisan."

The law

At the center of the dispute are the simple nine-paragraph acting agreements that Donahue, Leonard and Williams signed with Haxan. The documents, known as deal memos, are short-hand agreements that often precede or replace longer contracts.

In this case the memos were copied from a book by Haxan producer Gregg Hale without the help of an attorney. The actors also approached the agreements casually, with Donahue admitting that she only showed it to her photographer boyfriend before signing. According to some experts, deal memos are common in Hollywood but they can also be trouble.

"There is sometimes a problem with deal memos because they are short agreements," said Mark Litwak, an entertainment lawyer and author of several books on film contracts. "They often do not address the specifics of what the parties mean and sometimes it is an issue that was not even discussed by the parties at the time."

Artisan President and CEO Ken Schapiro contends in a deposition that the intentions expressed in the contracts cover the "right to use [the actors'] names and likenesses in connection with promotion of the film, in connection with promotion of remakes and sequels, in connection with merchandising and tie-ins and any and all promotion of Blair Witch and any subsequent motion pictures."

Donahue, Williams and Leonard claim that they satisfied their contracts by appearing in the first film and its marketing campaign and should not have been used by Artisan in connection with anything other than the first Blair Witch film.

"All kinds of different things came out of that contract," said Hoffman in a court appearance. "They had action figures out, they had books that were tied into the film and we didn't object to that. Where we started to object is when there was a second film involved that we had nothing to do with."

Disputes over the use of clips in other works are not uncommon, according to entertainment lawyer Schuyler Moore.

"This comes up all the time," said Moore, author of the book "The Biz: The Basic Business, Legal and Financial Aspects of the Film Industry." "Particularly with digital ability it is possible to digitally impose people in works."

In 1997 the White House sent a letter to the director of the Jodie Foster space film "Contact" protesting the unauthorized use of archival footage of President Clinton which was doctored to make it look as though he was meeting with Foster and her costars. No legal action was taken.

Cases of actors protesting marketing campaigns are not unheard of either. In 1990 Kevin Costner sued a video firm for trying to profit from his hit baseball movie "Field of Dreams" by repackaging a 1985 film, in which Costner played a minor role, as if he was the star. The video firm eventually filed for bankruptcy.

After Blair Witch, young actors struggle

Since the Blair Witch Project, the three original stars have returned to relative obscurity, with only Donahue making a blip on the Hollywood radar two years ago in the romantic comedy "Boys and Girls" starring Freddie Prinze Jr. While their lawyer has advised the trio not to comment on this case, they discussed the damage of the use of their names and images in "Book of Shadows" in depositions.

"The very presence of our names, pictures, portraits and voices in, and in connection with, Blair Witch 2 creates confusion," said Donahue in her deposition. "People believed I was involved and I had to individually, with each person that asked me, set the record straight."

Her co-stars reported similar incidents and Williams blames the confusion in part for his career woes.

"To bring my image back up in that light seemed to sort of take me back into that whole frame of time where I was the Blair Witch guy," said Williams, whose last major role was two years ago in an unreleased indie film. "I was the kid that they didn't know whether or not he was acting."

Hoffman rejects Artisan's assertion that his struggling clients, whose contracts entitled them to a share of Blair Witch profits, are simply after a bigger piece of the pie.

"The compensation they finally received was not unsubstantial," he said. "I think they were quite pleased. If Artisan had never used them in the sequel there never would have been a lawsuit."

The Blair Witch franchise has had its share of legal troubles already, with Artisan paying the makers of the original a reported $25 million to $30 million last year to settle a dispute over profits. And while its no Oscar, this latest round of litigation may be a Hollywood distinction worth having.

"If you have a successful film you are going to have lawsuits," said attorney Schuyler Moore. "Lawsuits are a badge of success whether you are a big studio or a small studio."

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