The author of the 1998 best-seller “Rocket Boys” will be able to pursue a lawsuit against Universal Pictures for breach of contract and misappropriation of name, but the studio won’t face allegations of fraud and other charges in a civil court battle.
A judge dismissed most of the claims in the lawsuit filed against Universal Pictures by the author of the 1998 best-seller “Rocket Boys,” a memoir about a young man growing up in a West Virginia mining town who dreams of becoming a rocket scientist. The legal action alleged the studio breached an agreement with its “October Sky” live musical based on the author’s multi-volume work.
Los Angeles Superior Court Judge Maureen Duffy-Lewis heard arguments Thursday on Universal’s motion to dismiss Homer Hickam’s entire case on free- speech grounds. She then took the case under submission and ruled later in the day that Hickam can move forward with his claims for breach of contract and both common law and statutory misappropriation of name.
Duffy-Lewis dismissed Hickam’s other seven claims, which included fraud and intentional interference with both contract and prospective economic advantage.
In her 5-page ruling, the judge said she disagreed with attorneys for Universal that all cases involving publicity are banned by the First Amendment. She said the U.S. Supreme Court has found there is a state interest in preventing both the exploitation of a celebrity as well as the “free ride on a celebrity’s value.”
Hickam, 73, says in his suit filed June 2 that he gave Universal the rights to his book for one film, also entitled “October Sky,” but that the studio went beyond what was allowed under their agreement by producing the play.
The book “Rocket Boys” is the story of Hickam’s life, who as a boy decided to build amateur rockets instead of following other family members into the West Virginia coal-mining business.
Hickam is seeking at least $20 million in damages and a court finding that Universal does not have any rights to his life story other the one he granted the studio to make the 1999 movie.
Universal’s attorneys argued in their court papers that the “October Sky” play “is an expressive work that involves Universal’s exercise of free- speech rights” about a matter of public interest.
“Despite Universal’s unequivocal rights to produce the musical … Hickam (since May 2013) has engaged in a relentless attack against the musical and those involved with it,” the studio’s lawyers allege in their court papers.
Hickam threatened to go on a hunger-strike and to buy radio spots “smearing Universal and the musical,” according to the studio’s attorneys’ court papers.
Hickam attorney David Tarlow says in his court papers that Universal’s First Amendment argument was flawed because it failed to identify “all allegations of protected activity and the claims supported by them.”
Although Universal has the right to produce an “October Sky” musical, the studio did so in a way that violated the terms of the parties’ agreement, in part by not consulting with the plaintiff first by licensing the play to the Marriott Theatre in Chicago, according to Tarlow’s court papers.
In June 2015, Universal sent Hickham a cease-and-desist letter demanding that the plaintiff cease further production of his own musical play of his life until after “October Sky’s” run was completed at the Marriott, according to Tarlow’s court papers.
Universal is producing a new version of “October Sky” that is scheduled to premiere at the Old Globe theater in San Diego in September. Tarlow has filed a separate motion to try and shut down the San Diego and any future performances. A hearing is scheduled Sept. 12.
—City News Service