UPDATED: Sylvester Stallone's Writer Credit Crisis in The Expendables
UPDATE: The appellate court has found in favor of Sylvester Stallone and the lawsuit has been dropped. Read the official verdict here.
Legendary movie star, writer, producer, director, choreographer and all-around hyphenate Sylvester Stallone’s legal troubles are as aggressive as his films. The Rocky actor is currently facing the second set of allegations on his third franchise, namely that his script for The Expendables was based on a script by another writer, David Callaham, who’d penned the script under a two-picture deal with Warner Bros. Stallone has admitted that he has read the writer’s original script, Barrow, and used certain parts of it to help structure The Expendables, but has also claimed that such contributions were minimal.
Stallone held the solo writing credit for The Expendables until a WGA arbitrator found that writer credit would be shared, giving Callaham “story by” and “co-writer” credits. The major issue here is royalties, as not only can Callaham collect on any royalties from the original film, but he can also collect on any sequels. The Expendables brought in $274.5 million worldwide while 2012's sequel made $305.5 million, not including VOD and home video. The Expendables 3 is slated for August 15th. Needless to say, there is plenty of money to go around and Callaham wants to collect.
The legal team for Nu Image, one of the production teams involved with The Expendables franchise, wasn’t satisfied with the results of this arbitration, and has sued against the judgment it deems to be faulty. In spite of the fact that arbitration is typically binding, judges will sometimes agree to hear such cases if parties allege the arbitration was based in fraudulent behavior.
Additionally, another writer named Marcus Webb is also suing Stallone, alleging that The Expendables is based on his own script, The Cordoba Caper. Webb sued Stallone in federal court, and while giving his testimony, Stallone explained how Barrow predated Webb’s script in augment of independent creation. He also admitted he liked Barrow and followed its structure when writing his own script, apparently in contradiction to his statements at the WGA arbitration. The judge, however, found that Stallone has been unable to prove that the film was “so strikingly similar” as to allow a jury to infer access, so this case continues as well.
Stallone’s legal troubles encapsulate a number of issues, one that might make writers apprehensive about sharing their scripts. What’s unique about this situation is that it involves someone so powerful, someone who has the ability to make or break someone’s career.
In the Callaham (minor) controversy, Stallone admitted he’d seen Barrow and got to work on writing The Expendables after reading it. The WGA arbitrator apparently agreed that the script contained enough similarity to award Callahan that elusive writing credit. However, the fact that Nu Image’s attorneys could challenge the results of this arbitration in court seems to call into question the strength of the a WGA arbitration judgment. Arbitration is designed to expedite the legal process, so the fact that it can cause a drawn-out trial is a major concern. Additionally, if legal teams can file lawsuits by asserting fraud simply because they are unhappy with arbitration results, what is the point of having the issue resolved in arbitration?
Then, the fact that Stallone made seemingly contradictory remarks about his involvement with Barrow in the case concerning The Cordoba Caper seems to stand against his credibility. It would be rather remarkable for two judges in different courts to find “substantial similarity” between The Expendables and two other completely unrelated scripts. That being said, it's difficult to imagine Stallone needing to rip another writer off, especially for something like The Expendables, which has neither a distinctive concept nor a coherent and ambitious storyline.
Furthermore, Stallone wrote The Expendables 2 and 3 with different writers (16 Blocks scribe Richard Wenk and Space Cowboys team Ken Kaufman and David Agosto in the case of #2 and Olympus Has Fallen team Creighton Rothenberger and Katrin Benedikt for #3) and no accreditation issues have been brought to light there.
Keep in mind that Stallone first got his start as a writer, not as an actor, and was nominated for an Oscar for writing the original Rocky. He has been writing viable vehicles for himself and for others (he penned last year's Jason Statham actioner Homefront) since the 1970s and has done uncredited rewrites and contributions to most of his films. Put aside his career as a movie star and a director and he'd still have an enviable track record as a screenwriter, far more so than either Callaham or Webb. A read of either Expendables script reveals Stallone's inimitable and surprisingly poetic wordsmith acumen in spades; for better or for worse, his stamp is all over the material.
Still, even if Stallone merely used Callaham and/or Webb's scripts as inspiration for the original film, it also begs the question of the dividing line between story inspiration and straightforward copying. This is a gray area, but the courts will tend to look at facts such as the uniqueness or complexity of aspects of the work, unexpected events that occur in both scripts, identical errors in both works, fictitious entires, such as place names, and obvious attempt to cover up copying. A rip-off of something from the Charlie Kaufman oeuvre or even Stallone's own recent thriller Escape Plan (penned by Miles Chapman and Jason Keller) would be easy to spot, but The Expendables franchise is built not on story or character but on casting gymnastics, nostalgia and cinematic wish fulfillment. Pop in the latest Steven Seagal, Statham, Van Damme or Scott Adkins direct-to-DVD release and you'll find wildly similar core elements and plot mechanics.
Screenwriters will never be able to fully protect themselves from issues of credit and plagiarism, but they can take precautions to help combat blatant plagiarizers and idea thieves. The reality is that those who steal ideas and scripts are in the minority...believe it or not, it is exceedingly rare in the industry...but like a bike thief or a bank robber, they’re out there, and writers can only do so much to protect themselves.
It’s important to ensure writers have copyrighted their work and registered it with the WGA, and that they formally document any exchanges concerning the scripts. As these Expendables cases show, studios can take a major hit if a project is found to be illegally copied from someone else. Most studios aren’t willing to take the chance.
Of course, it's more than a little amusing that multiple writers are chomping at the bit to take credit for The Expendables, a script that is so wildly inconsistent and full of baffling creative choices, structural deficiencies, character and dialogue maladies that it (hopefully) wouldn't have been made without the amazing package that went with it. Since we're already mired in it, let's take a quick look shall we?
It's an ensemble men-on-a-mission film a la The Dirty Dozen that benches 4 out of 6 of the titular Expendables for almost the entirety of Act II. Their private lives are never seen (save for a subplot involving Jason Statham's floozy girlfriend), and Jet Li's Yin Yang has so little dialogue and screen time that if you blink you'll miss him entirely.
Dolph Lundgren's Gunnar Jensen has a devastating drug addiction that we never see and that causes him to turn on his teammates and sell them out to the enemy. He then even tries to kill Yin Yang himself, only to have Stallone's fearless leader Barney Ross mortally wound him. With his dying breath, Gunnar redeems himself by telling Barney vital information needed to take the many baddies down...but then Gunnar miraculously pops up in the final boys-will-be-boys celebratory bash scene, negating the power of his arc solely for the sake of making sure he could jump into the sequel.
It's clearly a patch job and one that never should have been made. Either kill a character or save them for a sequel but you can't have your cake and eat it too. You can't earn the dramatic weight of killing off a lead character if you bring them back ten minutes later. Even more incredulous, Yin Yang and the rest of the gang (hey, that rhymes!) instantly forgive Gunnar in the final scene even though he tried to get all of them killed. Talk about not holding a grudge, wow.
The backstory for all of the characters is absolutely anemic. Clearly they’re all ex-military in one way or another, but we don’t know how they met or ended up as mercenaries for hire. The only development given is that each Expendable has a particular skill. Barney is a quick-draw artist, Statham's Lee Christmas is a knife savant, Yin Yang is the martial arts guy, Terry Crews' Hale Caesar has an amazing shotgun and straight razor and...well you get the idea. The chemistry between the group is flat, the dialogue is forced, and the best scene in the movie comes via a dramatic monologue from Mickey Rourke, who is clearly still sporting his Iron Man 2 haircut:
That scene is so good that it takes you out of the movie and makes you wish you were watching a different, better one. All of this is exceedingly odd. Stallone is a much better writer than The Expendables would lead you to believe, and if the script really should be attributed to Callaham and/or Webb, boy is that not a great calling card for them. The dialogue and chemistry between the mercenaries and Stallone is far more naturalistic, diverse and interesting in the last Rambo movie, released just two years before The Expendables. Can we go back in time and remake The Expendables with Stallone and the Rambo mercenaries please?
Crazy casting gymnastics is likely to blame for the muddled mess that The Expendables translates to onscreen and mirrors the chaos of the writing and accreditation arbitration processes. Stallone claims that he went through 100 drafts of the script, and whole characters and subplots were put in, reworked and eliminated. At one time or another, all of the following were slated to be in the movie: Ben Kingsley, Forest Whitaker, Brittany Murphy, Wesley Snipes (purportedly in the role that Terry Crews place, and now Snipes is fresh out of the slammer and poised to appear in Expendables 3), 50 Cent (dodged a bullet there), Kurt Russell, Charlie Sheen (!), Sandra Bullock and Denis Leary. Trying to wrangle that cast means scrambling to accommodate busy schedules and conflicting availabilities, so it's easy to imagine the script being in a constant state of flux and chaos. The fact that Stallone released a director's cut of The Expendables less than a year after the original hit theaters further speaks to this.
Getting a dream team cast together in a conscious bid to resurrect the thematics, aesthetics and visceral, old-school awesomeness of the ‘80s and early '90s action classics is a kick-ass goal, but ideally it shouldn't come at the expense of cohesive character backstories, arcs and a plot that makes sense.
The Expendables 2 is a vast improvement in a lot of ways. The story is more coherent, there is a stronger emotional core, and the group dynamic has been solidified and smoothed out. The sequel gets right almost all of what the original got wrong but then creates a new problem: wild tonal inconsistency. As soon as Chuck Norris shows up in Act II...and after playing relatively straight but with dashes of enjoyable gallows humor...the script veers sharply into tongue-in-cheek, borderline self-parody territory. Cue the forced stupid Chuck Norris jokes! This is only exacerbated by Arnold Schwarzenegger insisting on finding a way to say some variation of "I'll be back!" and making explicit fun of Rambo and Bruce Willis' signature character John McClane. The latter was particularly unnecessary, given that Willis would soon destroy the legacy of John McClane all by himself in exchange for a fat paycheck by appearing in a little cinematic abortion called A Good Day to Die Hard.
The sequel also cheats, to an extent, by making Liam Hemsworth's newbie Expendable the only expendable member. (Apparently Mickey Rourke's Tool was meant to fulfill that function but pulled out of the movie, causing more scripting chaos and necessitating the birth of a new character). Being expendable is a certain status. It speaks to issues of self-worth and expecting to die at any given moment. In fact, the etymology of being expendable in action movie terms goes back to Stallone's signature action hero Rambo, who is often inaccurately written off as monosyllabic and unthinking:
Here's hoping The Expendables 3 finally gets it totally right. Whether or not further issues of writer credit for the franchise are brought to arbitration, there is one more issue that ought to be settled in open court: why Barney Ross can't come to terms with his own facial hair. In the first film, he goes full goatee. In the second, he strips down to a 1970s disco/porn mustache. In the third, he goes clean-shaven.
What gives? Stallone has heretofore been a model of character consistency. Whereas Mel Gibson caused heartbreak around the world by murdering Martin Riggs' mullet in Lethal Weapon 4 and looking respectable...
...Stallone stayed the course throughout the Rambos, even though the last film in that franchise came out twenty years after the preceding installment and he was in his 60s and the 80s were long, long gone...
If the issue of Barney Ross' facial hair inconsistency is not deemed court-worthy, here's hoping that there's a moment in The Expendables 3 were the Expendables all discuss the matter. Who will fight for credit for that scene?