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Is that my baby on the screen?
The Canadian author of 'Knocked Up' on why she’s suing Judd Apatow and Universal over Apatow’s new movie
Did the 40 Year Old Virgin screw me? On and off, for almost a year now, this is the question I’ve been asking about Judd Apatow, the cowriter and director of The 40 Year Old Virgin. Apatow has had me craving stiff drinks over the last year and, occasionally, wanting to crawl into a fetal position, which is ironic, considering that my fight against Hollywood, namely my lawsuit against Universal and Apatow, all started because of a martini glass and a baby soother.
In March 2005, my book, Knocked Up: Confessions of a Hip Mother-to-be, was released in the United States, one year after it was published in Canada. It was reviewed in the Los Angeles Times, and mentioned in numerous American publications, including the New York Daily News, the Chicago Tribune, the Washington Post and the New York Times. Producers, as common in Hollywood as house-
sitters, eating disorders and rehab, came out of the woodwork, asking about the possibility of turning the book into a screenplay or television series. (I could have accepted any one of a number of bids from Canadian production companies who wanted to option my book for a few thousand dollars. But I was holding out for the Big American Offer.)
One Los Angeles producer was consistently persistent. He was a real producer, with actual projects under his belt. Over the past two years, I’ve talked to him numerous times about how to go about selling my baby—the book. Last summer he called and told me, “There’s a movie coming out called Knocked Up.” I know, I told him. I had seen a mention of it in Us Weekly.
“What did the cover of your book look like again?” he asked. “It was a martini glass with a baby soother around the stem,” I told him. “You are not going to believe this. I just saw the front page of the screenplay. You are not
going to believe what the picture is,” he said.
“What?” I asked, feeling my heart sink.
“It’s a martini glass with a soother around the stem. I’ll fax it over.”
And he did. “What do I do?” I asked him when I got the fax.
“Get a lawyer,” he said.
I felt sick and dizzy. Not only did the cover of the screenplay feature a martini glass with a soother around the stem, like the cover of the American edition of my book, the words “Knocked” and “Up” were in two different colours, the same as my book cover.
Could Apatow, the writer and director of the movie Knocked Up, coming out this week, possibly have read and stolen my book? Could he have read the review in the Los Angeles Times and thought, “Hey, this is a great idea for a movie?” Could one of the many producers who had inquired about my book given it to him? Or was I being paranoid?
Thoughts of the two authors who sued Dan Brown, and Random House, for copyright infringement were at the forefront of my mind. Not only did they lose appeal after appeal, they lost millions and millions of dollars in their quest to prove that ideas in The Da Vinci Code had been stolen from them. I was not going to be them, spending years of my life in court and my entire savings. I felt for the authors. But at times, I couldn’t help but think they were borderline crazy. I did not want to become like them. I did not want to be thought of as crazy.
For two nights after receiving that fax—a complete rip-off of my American cover—I googled Judd Apatow for hours, like an obsessed girl with a huge crush. During my search, I found a heated, very nasty, exchange, printed in Harper’s Magazine in 2002, in which Mark Brazill, a creator of That ’70s Show, accuses Apatow of stealing sketch ideas from him. “Aha!” I thought. “Apatow has been accused of stealing before! ” I also found out Apatow’s wife was pregnant around the time my book came out. Perhaps she read my book and told him about it?
Over the next few weeks, lying in bed, I’d compose letters in my head to the stars of the movie: “Dear Katherine Heigl, I love Grey’s
©Anatomy. I want to let you know you might be in a movie that was ripped off from my book and I didn’t get any credit. You must have been a struggling actor at one point. Can you please not do this movie?” And, “Dear Seth Rogen, I know you are Canadian. Did you by any chance buy my book at an airport on your way back from your Vancouver home and pass it on to your pal Apatow?”
I imagined being stuck in an elevator with Apatow, staring him in the eyes, as if I were in a high-stakes poker game, and then saying, “How could you do this? You’re not nice.”
I called my agent and told her what was going on. My agent works with a New York movie-rights agent and she told me she’d talk to him. He told her he would try to get me the script in the next couple of weeks.
In the next couple of weeks? Shouldn’t people be on this? Like right now?
So I called my Los Angeles producer friend, asking him if he could get his hands on a copy. Within an hour, I had the entire script on email. “How did you get it so fast?” I asked, amazed and grateful. “Oh, everyone in L.A. started off in the mailroom. We all know each other and can get everything from anyone,” he said. I realized that while Hollywood may seem big, it’s not. It’s a high school. You want drugs, you just need to know the right people.
I went home with the printed-off screenplay in my hands, planning to read it line by line and do comparative notes with my book. Before I did, though, I made a phone call to probably the most powerful entertainment lawyer in Canada. I left him a message, telling him what was happening and asking him if he could call me back.
He did, and gave me the name of an entertainment lawyer in Los Angeles. I called the
lawyer he suggested after reading the script and writing down page after page of notes of what I thought were similarities between my book and Apatow’s screenplay.
“My name is Rebecca Eckler,” I began, after dialing the L.A. lawyer. I felt like a telemarketer. “I wrote this book called Knocked Up and there’s this movie in production now, written by Judd Apatow...”
“Let me stop you right there,” the lawyer
Getting the bill from the law firm felt like getting dumped and then being told by the guy he had— oops—also passed on an STD
interrupted. “I’m sorry I can’t help you, but I represent Judd Apatow.” It was in that instant that I realized this wasn’t going to be easy.
The lawyer did, however, give me the name of another lawyer at another firm. Apparently he often sends people there. I should have known better.
I called the lawyer he suggested, and sent him an email with the point-by-point comparisons I had written out, along with the screenplay and my book.
During my Obsessive Judd Apatow Google Phase, I had also learned he had sold the idea for Knocked Up to Universal five months after my book came out in the U.S., a year after it came out in Canada, which meant, at the very least, my book came out first.
The movie Knocked Up features a woman named Alison who becomes pregnant after getting drunk. While she gets drunk going out celebrating a promotion at work, I got drunk, and knocked up, celebrating at my engagement party. Both my book and the movie feature one night of passion and the nine months that follow. Fine. Whatever. But what got me was the fact that “Alison” was an up-and-coming television reporter; in my book I was an up-and-coming newspaper reporter.
There were other similarities that hit close to home. In my book, I have a best-friendwith-screaming-children named Ronnie, who I go to often for advice. In the movie version, Alison has a sister, named Debbie, with screaming children, who is her sounding board. Both “Alison” and I did numerous pregnancy tests.
What also got my back up was that Ben, the man who gets Alison knocked up, is not only Jewish, but from Canada, like my man. (I still can’t figure out why the fact that someone was Canadian would add value to any movie.) And then there’s this one scene in the screenplay and movie, where Alison and Ben are having sex. Ben stops. Ben, in the screenplay, says, “My dick is like, four inches away from its head. What if it kicked on purpose ’cause it didn’t like it?” I actually wrote in my book about a joke I once heard, “A man and his pregnant wife had regular sex throughout her pregnancy. When their son was bom, the father held him in his arms. The baby looked up at his new father and, without warning, punched him. ‘See?’said the baby. ‘Now you know what it feels like to be bonked in the face.’ ”
The L.A. lawyer took me on as a client, telling me I had a good case, that the similarities couldn’t be random. A nasty letter was sent to Universal Studios and Judd Apatow.
By then, I was a little more than cautiously hopeful. Until I was dumped.
Yes, my lawyer dumped me a couple of weeks later saying something along the lines of he
does a lot of “business” with Apatow’s law firm and wouldn’t feel comfortable interrogating Apatow on the stand if it got to that point.
Obviously, Apatow’s law firm and my lawyer had talked. Obviously, I should never have taken a referral from Apatow’s law firm. Live and learn. Everyone in Hollywood, it seemed, was in everyone’s pocket.
I got off the phone with the lawyer who had just ditched me and did what any woman who has faith in a man who then ditches her would do. I cried.
A couple of days later I got a bill from the law firm. It was like getting dumped and then being told by the guy he had—oops—also passed on an STD.
My fiancé, a lawyer, told me straight out I was not going to pay it and that I should report them. I didn’t. But I sent off a curt email saying I wasn’t going to pay. Do you have to pay the taxi driver when he decides to drop you off halfway to your destination
because a sexier, more famous woman flags him down?
I knew my ex-lawyer felt guilty because he said I didn’t have to pay. I never heard back from him after that, except for an email telling me he wished me the best. He also suggested another lawyer. As if I was going to take a referral from a man who betrayed me.
I started to hate Hollywood, especially Hollywood lawyers. Here I was, after months of dealing with this lawyer, back to square one. Now I’d have to find another law firm, one that didn’t deal with either Apatow or Universal. It was clearer than ever that fighting a large movie studio and a major Hollywood player to prove that Apatow had stolen my book was going to be tough.
In recent weeks, nine out of every 10 people who have spoken to me have asked me if Knocked Up was “my” movie. And anyone I show both the copy of the screenplay and the cover of my book to immediately says, “There’s no way they didn’t steal this!”
Here’s the catch. You can’t copyright a title, or an illustration. Morally, I may be right. Maybe Apatow did read my book. But technically? Copyright infringement is difficult to prove. I have learned about something called scène à faire, meaning it would
be difficult to prove that every woman didn’t go through the same things over the space of nine months that I wrote about in my book, including worrying about telling your boss, heading directly to the bookstore after learning you’re pregnant, then being grossed out about what you read about the growing fetus, and the fact that men are bored in obstetricians’ waiting rooms (all of which I cover in my book and are also scenes in the movie).
Before my lawyer dumped me, we did get a response back from the lawyers representing Universal Studios and Judd Apatow, basically telling us to go screw ourselves, and that the martini glass logo that appears on the book (and on their screenplay) would not appear in the movie. The response from Universal was, by far, the nastiest letter I have ever seen, as, I suppose, it needed to be. They have great lawyers.
By then, it had really hit home that I am nothing more than a 98-lb. Canadian weakling—literally and figuratively—who makes a good enough living, but who is certainly not in the same weight class as Universal/Apatow—who have insurance to cover their legal fees. I’ve also learned that if I went through with the lawsuit and lost, I would, in addition to my own legal fees, have to pay theirs.
Had any of it been worth it, emotionally or financially? Well, I still had a little fight left. Luckily, I knew someone who knew someone who is a litigation lawyer for a huge American television network. This is something else I’ve learned. To fight the big boys, you need to know people. If you don’t, don’t bother.
Big American Television Network Litigation Lawyer and I had a long chat. He gave me the name of yet another Los Angeles lawyer, one he trusted, who is now my lawyer.
But the process is so painfully slow. I could pop out another two babies before this thing ends. Trial dates will not be until March 11, 2008. Unless we settle before then.
Here’s what it comes down to: l) Being a writer, especially a Canadian one, without access to an unlimited bank account, sucks. 2) Copyright infringement is highly technical and difficult to prove. 3) Universal/ Apatow know they have resources I do not have, and that every time they simply do not return my lawyer’s phone call, it costs me money.
I have seen the movie. I saw it months ago, when it premiered at the South by Southwest Film Festival in Austin, Texas. Sitting in the audience, I felt sweaty and nervous.
There are lines in the movie that aren’t in the screenplay, which makes things even more confusing, including one joke about “jumping on a trampoline,” which wasn’t in the
screenplay, but was definitely one of the things I mention in my book, under a heading, “Things I have not done wrong while pregnant.”
After the movie, alone in my hotel room, all I asked myself was, “Do I want this movie to be a hit? Would it be better for me if it is a hit?” I ran on a treadmill for 50 minutes the next morning, trying to run Apatow right out of my brain. I have lost about 10 pounds since last summer, thanks to Apatow and this lawsuit. Though I have been trying to remain as emotionally uninvolved as possible, for my own sanity, it has taken a toll.
But when I ask myself, would I have felt worse not doing anything, not fighting at all? The answer is yes. And when people ask, almost daily now, if Knocked Up is based on my book, I simply say, “Ask Judd Apatow.” M
Rebecca Eckler is also the author of Wiped! Life with a Pint-Size Dictator.