EXCLUSIVE: Directors Alex Gibney, George Hickenlooper in Casino Jack Title Dispute
While 2009 came and went without a single feature-length film devoted to the life and times of Jack Abramoff -- the duster-and-black-fedora-favoring lobbyist and huckster who became a poster child for Bush-era government corruption -- 2010 will have two. One is a documentary from Oscar-winning documentary filmmaker Alex Gibney, the director of Taxi to the Dark Side and Enron: The Smartest Men in the Room; the other is a biopic starring Kevin Spacey, from doc-turned-features director George Hickenlooper. Both are titled Casino Jack. And that's where there's a problem.
In a cease-and-desist letter dated November 10th, Gibney's lawyers instructed Hickenlooper to change the title of his movie, "failing which our clients reserve the right to take any and all necessary action, without further notice, against you and any third-parties who engage in related acts of unfair competition."
The letter begins by establishing Gibney's bona fides:
This firm represents Oscar-nominated director, writer and producer Alex Gibney and his company, Jigsaw Productions, whose work in motion pictures is well known. Our clients' film "Taxi to the Dark Side" won the Academy Award for Best Documentary Film in 2008. They were also the creators of the 2006 Oscar-nominated documentary feature "Enron: The Smartest Guys in the Room," the Johnn Depp-narrated "Gonzo," about Hunter S. Thompson, and numerous other noted documentary films. [...]
It then establishes that the film has been in development for three years, during which time it was well-publicized, and will likely debut at Park City in January 2010:
Our clients' next film to be released is "Casino Jack," a theatrical film which tells the story of the downfall of disgraced Republican lobbyist Jack Abramoff (the "Film"). Our clients have been working on and promoting "Casino Jack since 2007... [N]ow in its final form and ready for theatrical release, ["Casino Jack"] is likely to be shown in its entirety at the Sundance Film Festival...in two months.
It then goes on to insist that the use of Casino Jack as the title of Hickenlooper's version was chosen knowingly, and that the two Casino Jacks in the same theatrical marketplace would lead to confusion and "harm" to audiences:
While there seems little reason to doubt that your mimicry of the Film's title is knowing and intentional, there can be no doubt of the likelihood of confusion and resulting harm to the film-going public and to our clients if you do not immediately cease all use of the title "Casino Jack" in connection with your film.
Hickenlooper's camp, meanwhile, replied by saying that they had pursued all proper legal courses to legitimate use of the title, and that contrary to Gibney's claim, the title was rather a reference to Abramoff's well-known nickname.
This other documentary film was known to us at the time we carried out the Title Clearance for our film in May and it was disclosed in the Title Clearance Report referenced under the title "Casino Jack: United States of Money" (which we found on the filmmaker's website but not in any official public database). Because this film was a documentary and not a drama and since "Casino Jack" was a well known nickname for Jack Abramoff that was coined long before either producer decided to use it in a film title, the insurance company's counsel agreed that it was not a name that either producer could stake claim to as their own and that we had in any case established our right to use the name in the marketplace based on the steps we had already taken at that point (copyright registration, IMDB listing, promotional materials, etc.). Accordingly I am of the opinion that this claim has no merit and will be happy to respond to it accordingly at your direction to do so.
This isn't Gibney's only legal action. In 2008, he filed for arbitration with the Independent Film & Television Alliance, claiming Taxi distributor ThinkFilm sabotaged the film's box office prospects by not having the funds to properly market and distribute the film. (The claim asserted that the film's website was shut down, for example, after they failed to pay vendors, and that there was virtually no post-Oscars ad campaign touting the film's theatrical run.) The film has made a little less than $275,000; Gibney seeks over $1 million in damages.
How strong is Gibney's case? Hickenlooper registered Casino Jack with the Title Registration Bureau, the MPAA office founded in 1925 whose sole function is to resolve these kinds of disputes. But he still might not be entirely out of the woods -- because registration doesn't protect from things like trademark infringement or, as Gibney is claiming, unfair competition practices. Adding to the strength of his case are the fact that both films are about the same topic, and are coming out at roughly the same time. In other recent title disputes, like the James Cameron's Avatar vs. M. Night Shyamalan's Avatar: The Last Airbender skirmish, the underlying material was totally different. (Still, Airbender caved beneath Fox's mighty blue fists.)
In all likelihood, this will be resolved outside of a court, as it can take upwards of six months to settle these things without MPAA arbitration. Interestingly enough, however, according to IMDB, Gibney's film is not called Casino Jack, but is actually listed as Casino Jack and the United States of Money. Hickenlooper maintains he didn't register either.
"He is suing us to change the name of our film despite the fact that he publicly never registered his," he told us. "He says we're infringing on his publicity. What publicity?"
A call to Gibney for comment wasn't returned.
Download the full PDF of the letter here.