Substantially Similar--A Blog on IP Issues, Writing and Film
John T. Aquino, Attorney and Author
 Call us: 240-997-5648
HomeOverviewAttorneyAuthorBooks and ArticlesTruth and Lives on Film
ReviewsSaints for LawyersBlog--Substantially SimilarFiction

Substantially Similar--A Blog on IP Issues, Writing and Film

No 'Seismic Shift for Sexual Harrssment and Assault

by John Aquino on 02/02/18

The "Me Too" movement to bring increased awareness of and unity against those committing or covering up sexual harassment and sexual assault has been surprising in its suddenness and its immediate effectiveness. I am concerned about the reaction of those, including former first lady, U.S. senator, U.S. secretary of state and U.S. presidential candidate Hilary Clinton, former presidential advisor James Carville, and Hollywood producer and the most notorious of those accused of sexual assault and sexual harassment Harvey Weinstein. They have explained their actions by referring to the "seismic shift" that has occurred in the U.S. concerning sexual relations. Clinton used this excuse in explaining why the hadn't agreed to fire a member of her 2008 campaign staff accused of sexual harassment.

Seismic shift! It has never been acceptable to harass and/or assault women. It has, however, been common for some to condone such behavior, especially of those in power.

The strong reaction to the Weinstein accusations is important because the Hollywood "casting couch" has been part of filmmaking since the industry settled in that California city in 1913 and has served as a template for such behavior for such behavior. Young women flocked to Hollywood to become movie stars. The "casting couch" was usually introduced as, "Do you want to be in the movie or not? If you do, then you have to be--nice to [to the producer, director, leading actor, screenwriter, whatever]. If you don't want to do this, then there are thousands who will." Similar situations have occurred in the theatre and the financial industries in New York, politics in Washington, D.C. and academia and businesses everywhere.

When I was an executive, female staff members would come to me for help against sexual harassment and/or advances from company managers, presumably because I was and am happily married. I believed that having female employees who feel obliged to succumb to such advances or who quit rather than give in is bad for business. And so I would talk to the managers and, failing in that, talk to the owners, usually citing the potential legal implications and the harm to the company's reputation. The usual result was that the advancer would be told to and would retreat from that particular target and that I had antagonized the advancer as well the owners, who didn't want to offend or possibly lose a talented salesman, fund raiser, or whatever.

The desire to keep those accused on staff and happy has resulted in their continuing bad behavior. Human resources people would take the accuser aside and say, "If it comes to that and they have to choose between you and him, whom do you think they will choose?" Women who accused television journalist Charlie Rose of sexual harassment recalled HR people saying, "Oh, that's just Charlie being Charlie."

I was vocal in my circle during the Clinton scandal of the late 1990s in my disappointment in the response of my two professions--journalism and the law. Much of the media and many attorneys downplayed President Bill Clinton's affair with Monica Lewinsky, a presidential intern. They insisted that his dalliance with her and, reportedly, with other women, and his lying under oath about his affair with Lewinsky didn't meet the constitutional requirement necessary for conviction of a president as a "high crime or misdemeanor." Some, such as Carville and Hilary Clinton, suggested the women were gold-diggers, loose and/or trailer-trash. Looking back, Carville, when asked recently, admitted that he probably wouldn't use the same language today, referring to the "seismic shift." Others who were in Congress then and even executives at the National Organization for Women (NOW), admitted after the Weinstein scandal  public  became they probably should have listened to the Clinton accusers more at the time. I remember interviews then with members of Congress in which they were asked if they would let their daughter be an intern under President Clinton. They would invariably say, no, but still insist that his behavior wasn't a high crime or misdemeanor. Few considered the situation of Lewinsky and, reportedly, the other women, who had been propositioned by the governor of Arkansas and, later, the president of the United States, the most powerful man in the world. Some of the women claimed they had been assaulted. Others faced the casting couch dilemma--do you want to work here--or anywhere if you offend the president--and, if so, here's what you have to do. Also, our current president has been the subject of accusations as well.

Sexual harassment and sexual assault were always wrong. There was no seismic shift. People just caved to people in power or in order to stay in power. Those who condoned them in the past should be ashamed, admit they were wrong, and pledge to respect all women in the future. No hiding behind ambiguous phrases. It's the only way the past and the present will make any sense.

Copyright 2018 by John T. Aquino

How Much to Fight with Your Boss

by John Aquino on 01/30/18

I've had friends who've had such problems with their bosses that they've quit their jobs. Never have I personally seen that work out for the better. I did it once myself, and I was wrong. It was the best job I ever had. He was fired a month after I left. Maybe he was fired because I and others had left. And there was another time when the boss stayed and stayed.

In talking about management issues, I sometimes find analogies in the making of movies. Some big movie stars were constantly at war with the studios that employed them: Bette Davis, James Cagney, Errol Flynn, and Olivia De Haviland. All of them were not coincidentally under contract to Warner Brothers studio, led by Jack Warner.

Davis tried to quit twice, Warners sued for breach, and the court held Davis to her contract. After she finally left, her career fell apart. Cagney didn't renew his contract twice, tiring of the gangster roles Warners kept giving him. Each time he came back, and the second time he took on the most violent, malevolent gangster ever seen in White Heat, and his career took off again. Flynn never quit but grew disinterested, and it showed. Like Davis, after he left Warners, he played mostly in support of others in films made in Europe.

De Haviland sued, citing Warners' as well as the other studios' practice of assigning stars mediocre films to prompt them to turn them down. The studios would put the actors on suspension and then add time to their contract, effectively turning a seven-year term to a 14 year term. She won the lawsuit, and the result became known as the De Havilan rule, prohibiting adding time to contracts. Free from Warners, she went on to pick roles that won her two Academy Awards, but for the next two decades she worked very little. Studio heads were evidently wary of employing an actress who had prone to litigation and had single-handedly destroyed a successful studio practice.

It could be argued that for all of their complaints Davis, Flynn, and Cagney did their best work for Warners and De Haviland did most of her best work there.
This doesn't mean that the bosses always know best. Stars like Cary Grant`, Katherine Hepburn, James Stewart, and Gary Cooper bridled at long-term contracts and later in their careers basically became freelancers for studios.
There are, of course, perils in this route. But Grant, Cooper, Hepburn and
Stewart were good enough and famous enough to carry it off.

And then there are examples of actors who worked well in the studio system. One extreme example is Robert Taytor who spent most of his career working under contract for M-G-M. Taylor had a reputation for being easy-going and just darn grateful to M-G-M for giving him a contract when he knew there were many young actors who may have been more talented although maybe not as handsome who never got a chance to make a movie. He worked hard at his craft and is reported to never have turned down an assignment. The result was that, while other M-G-M contractees saw their contracts not renewed as they grew older, Taylor's kept getting renewed. He was no trouble and did good work. An interesting side-effect of this is that M-G-M didn't assign Taylor that many really bad films. It was almost like they figured if Taylor wouldn't fight for better roles for himself the studio would have to do it for him. They were prompted by the fact that his pictures made money and to put him in junk would tarnish his stardom. So, when he turned 40 and was no longer the youthful romantic lead, M-G-M cast him in Ivanhoe, and he began a series of epic costume films that revitalized his career. His career at M-G-M last 25 years.

Of course, Taylor's path only works when the employer makes the right decisions for the employee, which most employers don't.

For all of those who fought the studios tooth and nail, there are those who worked in the system and made it work for them. Which path you follow depends on how bad the job is.

Copyright 2018 by John T. Aquino

Moving My Dad

by John Aquino on 01/29/18

My Dad, Sylvester J. Aquino, was 50 when I was  born and died 50 years ago. He was a Georgetown Law graduate and practiced as an attorney in Washington, D.C. for 30 years until he died. He worked with the Italian-American community in the city. He was a good and caring man.

His being 50 years older than me had its consequences. When I am given sample secret answers for access to my bank accounts and credit cards online, one is always, "What is favorite song from the 1990s?" I don't have a favorite song from the 1990s. I do have favorite songs from the 1920s and 1930s and 1940s and other songs my Dad taught me. 

When he died, our family buried him at the Catholic cemetery in Northeast Washington.  But the family has moved away from that area, and when my mother died this year we decided to bury her in the cemetery in Silver Spring and to move my father there. 

It was a long and complicated process, involving visits to D.C. government offices for permits and coordinating with two cemeteries and a funeral home. But we finally moved him a few weeks ago. It was a small service. Other family members were working, so there were only three of us, my wife, my brother and me, plus a deacon and a representative of the funeral home. Each of us said a few words. 

I said that my Dad was a man who loved his family, his country, his Italian heritage and his Catholic faith. He spent his life helping other people. He didn't ask much back, except for one thing. He made his children promise never to name any of our children "Sylvester." And none of us has.

My mother was an English teacher and guidance counselor for the D.C. public schools. She was the one who encouraged us to read poetry.. But I remember one poem my Dad recited. I was going through  some teenage angst, and in response, he recited Rudyard Kipling's "If," which begins,

"If you can keep your head when all about you
Are losing theirs and blaming it on you.
If you can trust yourself when all men doubt you,
And make allowance for their doubting too."

It ends,
"If you can fill the unforgiving minute
With sixty seconds' worth of distance run,
Yours is the Earth and everything that's in it,
And--which is more--you'll be a Man, my son."

That poem and especially the "my son" have spoken to me over the years and from heaven.

Copyright 2018 by John T. Aquino

Fictionalizing True Stories: As Important An Issue As Ever

by John Aquino on 01/27/18

I have written a book and articles on the legal issues surrounding fictionalization in fact-based films. And the topic continues to be of interest. In a Jan. 19, 2018 review of the second season of the British tv series The Crown, which is based on the life of Queen Elizabeth II, Richard Power Sayeed wrote in the (London) Times Literary Supplement of how the queen and then-Prime Minister Tony Blair spoke on the phone about how to frame a response to the death of Princess Diana. Only the most general information about the call had been reported. In writing the screenplay for the 2006 film The Queen, Peter Morgan had to imagine what had been said.  Morgan noted that in later interviews Blair described what he and the queen had said and quoted verbatim from Morgan's screenplay. Having seen the movie, Blair probably subconsciously adopted Morgan's language, which was presumably more memorable than what was actually said. Sayeed suggested that future historians describing the incident would actually be quoting Morgan. And so, fact became fiction which became history.

It's an interesting variation on the newspaper editor's maxim in John Ford's The Man Who Shot Liberty Valance (1962): When the legend becomes fact, print the legend. But it also addresses the question I sometimes get in presentations I've given on this topic: doesn't everybody know that it's a movie and they make things up? I usually answer by asking, what if the only knowledge you have of the person portrayed in the movie is the movie. When you hear his name, won't you say, "Ah yes, he's the one who betrayed his regiment!" Or I give the example of a client who in a book manuscript she asked me to review discussed the Scopes "Monkey Trial" of 1925, saying that he had been arrested in his classroom for teaching evolution. That scene was invented for the 1960 movie Inherit the Wind and never actually happened. And here, with the movie The Queen, former Prime Minister Tony Blair evidently believed that he had said what a screenwriter imagined he said. It has something to do with the meaning of truth.

The legal issues continue. Olivia De Haviland, who is now 102, has sued the makers of the tv miniseries Feud, which recounted the feud between Bette Davis and Joan Crawford that blossomed during the making of What Ever Happened to Baby Jane (1962). De Haviland claims that the portrayal of her in the miniseries was false, noting that she did not say the things the series shows her as saying. The judge refused to dismiss the case, but recently a number of groups have come forward supporting the filmmakers. ( https://www.hollywoodreporter.com/thr-esq/mpaa-netflix-support-fxs-defense-olivia-de-havilland-1078617 ).

The complaint of people like De Haviland dates back at least to the time of Queen Elizabeth I who had the historian Sir John Hayward hauled before the Star Chamber for putting words in the mouths of her ancestors. Perhaps the court will rule in De Haviland's favor. Perhaps not. If it does, and the decision is upheld on appeal, it will change the practice of courts to grant filmmakers some flexibility in compressing time, creating events that may not have actually happened but are true to the spirit of what happened, and to create composite characters.

The practice of filmmakers when dealing with historical facts is generally to compress and composite. They also strive to find dramatic tension. The 2012 movie Argo was based on the CIA's attempt to rescue a smaller group of Americans hiding in the Canadian Embassy in Iran during the 1979 Iranian hostage crisis. Agent Tony Mendez employed a plan to create a fake Canadian science fiction film, convince the Iranian revolutionaries that he was seeking permission to shoot the film in Iran, and then blend in the six Americans hiding in the Canadian Embassy with Mendez's supposed crew. Up to the end, the film was relatively faithful to the facts. The problem for the filmmakers was that Mendez's plan worked perfectly. Mendez and the six Americans simply got on the plane and left Iran. Not very dramatic. And so the filmmakers had the revolutionaries discover the CIA plot at the last minute and chase the plane in jeeps, shooting at the plane as it took off. Something that you imagine would have been noticed by the other passengers.

Other films address the issue of fictionalization with variations on the Argo model. The 2017 film The Darkest Hour portrays the first month of Winston Churchill's prime ministry in 1940 with the Nazis poised to cross the English channel and conquer England as it had most other countries in Europe. The film begins with members of Parliament denouncing Prime Minister Neville Chamberlain for his attempts to appease Hitler and forcing him to resign in favor of Churchill, who is magnificently played by Gary Oldman. To create tension, the film shows Churchill as the lone voice in his war cabinet, which includes Chamberlain and his protege Lord Halifax who are pushing for a negotiated peace with Nazi Germany. Churchill begins to doubt himself until he goes on a subway train and talks to the people. The passengers resist the idea of seeking a peace with Nazi Germany. Emboldened, Churchill seeks the support of his sub-cabinet, which reacts as the passengers did. Further emboldened, Churchill tells his war cabinet he will not approve peace negotiations with Germany, and even Chamberlain supports him. England stands alone and fights the Nazis for a year until the U.S. joins the war in December 1941.

The tension in the war cabinet is at odds with the opening scene in which the Parliament forces Chamberlain, seen as the appeaser, from power. There was discussion in the war cabinet of inquiring about peace terms with the Nazis, but Churchill prevailed. Churchill did go and meet with people on the streets on occasion, but the subway ride never happened. He did seek the support of his sub-cabinet, but it was a strategy prompted by Churchill's strength and confidence, not out of desperation.

Another Churchill film, this one titled Churchill and starring Brian Cox, also distorted facts to create dramatic tension. Unlike The Darkest Hour, it was not even true to the spirit of what happened. It shows Churchill opposing the Normandy invasion because he is afraid it will fail and openly confronting General Eisenhower until he has an epiphany at the end of the film. According to the filmmakers, the movie was based by a sentence in the diary of Churchill's wife in which she wrote that he worried about the thousands of men who would be killed.  But in actuality, Churchill was the invasion's prime mover., advocating it almost two years before it happened. All of the scenes are completely made up because nothing close to them ever happened.

Yet another film related to Churchill, although he is not shown and Germany is not mentioned, is Dunkirk, which graphically recreates the terror of being under attack and the risks the private boat owners took. However, virtually every character is a composite or completely fictitious.

Two older films, both titled The Gathering Storm, one starring Richard Burton and made in 1974 and the other starring Albert Finney and made in 2002, cover the period just before that of The Darkest Hour, and are more straightforward in their presentation of fact.

A final word on The Darkest Hour. The disclaimer at the end of the film is simpler than those of many fact-based films. It states, "Although based on fact, some of the characters and events are fictitious." It also has Dunkirk as part of the plot, but it seems to happen as an afterthought and not as part of the British people's support of the war--just as the fictitious people on the train support Churchill.

Copyright 2018 by John T. Aquino

The Circus: Gone But Not Forgetten

by John Aquino on 07/17/17

The most famous circus of the world--Barnum & Bailey--stopped performing just over a month ago. There was a great deal of media coverage of the event. But now, a month later, the world goes on. This could be seen as justifying the decision of "the greatest show on earth" to close. In this 21st century world of superhero and fast and furious car chase movies, reality television and a 24/7 news cycle that can air footage of beheadings by terrorist groups, a circus that was a phenomenon over 150 years ago may no longer have a place. 


Maybe not a physical place.

I am no fan of circuses. I remember my father taking my brother Jim and me once and our having to go home because a clown made me cry. A man I worked for told me of the horror he experienced when he did the expected fatherly thing and took his son to the circus. "It was like being trapped in a Fellini movie. Midgets! Dwarfs! Ladies with beards!"

But the idea of a circus was special. It was basic entertainment before movies and television, appealing to a broader audience than Shakespeare and Ibsen and Rossini and Wagner, more wholesome than Minsky. 

Movies realized this. Charlie Chaplin's 1928 silent "The Circus" is less well remembered than "The Gold Rush" or "City Lights" or "The Great Dictator" but in as many ways equally as good, more compact, more efficient, filled with the genuine affection of the greatest movie clown. Carol Reed's "Trapeze" (1956) placed former acrobat Burt Lancaster in the role of a crippled aerialist trying to help a younger man (Tony Curtis) do the triple somersault. Cecil B. DeMille, master of the movie epic, directed a 1952 movie in cooperation with Barnum and Bailey called "The Greatest Show on Earth." It has been derided by many as the worst movie to ever win the best picture Oscar. I like it. It has a an all-star cast that includes Charlton Heston, James Stewart, Cornel Wilde and Betty Hudson, a circus train wreck that is still pretty convincing even in this computer-generated imagery world, and a story that if it were a book would be called a page-turner.

Even on Broadway, there was "Barnum," a 1980 musical with a score by Michael Stewart and Cy Coleman that tells P.T. Barnum's story. Not all that well remembered, it ran over 800 performances and has a jaunty, underrated scope ("Join the circus like you wanted to when your were a kid").

The idea of a circus has affected these other media for a reason that was best articulated in a tv movie called "Barnum," again starring Burt Lancaster, this time playing P.T. Barnum. Lancaster was 73 at the time, four years before he died, and too old for the role by 30 years. But at the end of the movie, speaking as Barnum, he talks to the camera, to us, and explains why Barnum will be remembered. "I invented the audience. I invented you."

Copyright 2017 by John T. Aquino