Seeking Bergman Film Rights? Try Aspen
By BROOKS BARNES
Published: January 20, 2009
LOS ANGELES — As plot twists go, this one is a doozy: after an eight-year legal battle over the lease of a movie theater, the former owners of a multiplex in Aspen, Colo., now own the rights to Ingmar Bergman’s entire film library.
Or do they?
In late December an amateurish-looking Web site popped up offering for sale on DVD dozens of classic Swedish films, including those of Bergman, the film legend responsible for classics like “The Seventh Seal” and “Cries and Whispers.” The site, SwedishClassicFilms.com, also offered to sell exhibition rights.
The offer, so unusual as to be unbelievable, was not extended by Svensk Filmindustri, the giant Swedish company that has long held the rights to Mr. Bergman’s work and to the other Swedish art house classics on the Web site’s list, including Bo Widerberg’s “Elvira Madigan” and Lasse Hallstrom’s “My Life as a Dog.” Instead, the offer came from the former owners of the Isis Theater in downtown Aspen.
In July a Colorado judge transferred all of Svensk’s film rights to Isis Litigation L.L.C. after Svensk refused to pay damages resulting from a renovation of the Isis Theater in the late 1990s. Now, having finished recording its bounty with the United States Copyright Office — and with the documents to prove it — Isis has set out to make some money.
“We never wanted to go into the Swedish film business,” said Jack L. Smith, a Denver lawyer at the firm Holland & Hart who has represented Isis in its legal battle with Svensk since the beginning. “But now we own these films and are in the process of trying to figure out how to market them.”
What Isis actually owns is subject to some debate by outsiders.
Hugh D. Wise III, a Colorado lawyer who at one time represented Svensk, could not be reached, and e-mail inquiries and telephone calls to Svensk and its corporate owner, the Bonnier Group, went unreturned. In July Torsten Larsson, a Bonnier entertainment executive, told Variety, “A court decision in Colorado means nothing in Sweden.”
After a casual perusal of recent court orders in the case, Louis P. Petrich, a lawyer who is considered one of Hollywood’s leading authorities on copyright and trademark matters, said he was unconvinced by the Isis claim. “I don’t see any basis for a state court to do this,” Mr. Petrich said.
Bankruptcy is one exception, Mr. Petrich said, and a court could perhaps transfer certain nonexclusive copyrights. But nonexclusive rights are significantly less valuable. “With nonexclusive rights, you’re not going to be an infringer if you use them, but you can’t prevent anyone else from using them either,” Mr. Petrich said.
Back in Colorado, where Mr. Smith’s firm bills itself as “The Law Out West,” Isis disagrees. “The rights that Isis now holds are exclusive rights,” Mr. Smith said. “Svensk has no further rights to the films.”
Mr. Smith said that the original lawsuit involving the theater was served to Svensk at an office in California, now defunct, establishing jurisdiction in the United States. Furthermore, Mr. Smith said, Colorado law holds that a state judge can order the transfer of assets if a defendant refuses to pay a judgment.
Svensk has certainly refused to pay — or to participate in recent court proceedings at all.
The Isis and Svensk dispute began in 1997. The Swedish company, according to court documents, was then a co-owner of Resort Theaters of America, which operated a chain of cinemas in second-home communities like Aspen. Resort Theaters in 1997 had asked the owners of the Isis Theater, which opened in 1915, to allow them to convert the historic building into a five-screen cineplex. To persuade Isis to participate in the costly project, Svensk guaranteed in writing the long-term lease.
In 2000 Resort Theaters filed for bankruptcy and rejected the Isis lease. Svensk refused to pay on the guarantee. In 2003 a Colorado court found Svensk liable, awarding Isis a judgment of almost $7 million. Svensk appealed the judgment to the Colorado Court of Appeals and the Colorado Supreme Court, which each found in favor of Isis.
In May 2008 Colorado District Judge Denise K. Lynch found Svensk in contempt of court for refusing to disclose its assets to Isis, fining the company $2,500 a day. Around this time, according to Mr. Smith, Svensk stopped communicating with him or with the court, and the company’s original lawyer, Mr. Wise, resigned. In July Judge Lynch ordered Svensk to hand over all its films to Isis within 30 days.
After silence from Svensk — and with the judgment against Svensk now reaching about $10 million — Judge Lynch in September appointed an outside lawyer to transfer all of Svensk’s film rights to Isis, a process of filing with the United States Copyright Office that took until December to complete.
Mr. Smith says Isis — he won’t name the members of the investor group publicly, except to say “there is no major media company or the like involved” — now intends to capitalize on its new asset. (The Aspen multiplex is still operating, but under different owners who have nothing to do with this litigation.) The library of Bergman, who died in 2007, is just the tip of the Svensk cinematic iceberg, with some 200 titles, most of them obscure, also registered by Isis with the copyright office.
Isis lacks physical prints of the films, but Mr. Smith says that is not of primary concern. DVDs now available in the market contain digital copies of sufficient quality, Mr. Smith said. “We are still in the process of figuring all of that out,” he said.
Fans of Bergman in particular and of Swedish cinema in general are likely to applaud any action at all involving the Svensk library. In the United States, at least, very little distribution has taken place in recent years, possibly because of a lack of commercial interest but also possibly because, as Mr. Smith contends, Svensk wanted to avoid the market to avoid seizures that might have been made to satisfy the Isis judgment.
Since 2005, after the Colorado Supreme Court ruled in its favor, Isis has been paid royalties from some DVD distribution of Svensk works by companies like Janus Films, a distributor of classic and foreign films.
Those royalties total $520,000, according to Mr. Smith.
Mr. Smith said that Isis was willing to transfer the rights back to Svensk if it paid off the judgment. Otherwise, he added, Isis would seek buyers for the library or use it in any way it could.
Who might buy the library? Film-financing experts said that companies like Janus or International Film Channel could kick the tires, but that the holdings might not be as valuable as Isis hopes.
“This library is certainly very prestigious but probably has very little commercial viability,” said Amir Malin, a partner at Qualia Capital, a media-focused investment company with assets that include several large film libraries.
“I think any serious player would take one look at the unusual circumstances here and decide it’s too much of a legal risk,” he continued. “It may end up being an interesting tale and not much else.”