The Journal of Critical Analysis of Judicial Decisions

The Journal of Critical Analysis of Judicial Decisions

Market Trouble, An Analysis of the Judicial Decision on Unauthorized Life-story Adaption in Motion Picture production: Lost Profit or Lost Opportunity to Making Profit?

Articles in Press

Document Type : Original Article

Authors
ABBAS Mirshekari 1
Mona Abdi 2
1 Associate Professor of Department of Private and Islamic Law, Faculty of Law & Political Sciences, University of Tehran, Tehran, Iran.
2 Ph. D in Private Law, Faculty of Law, Shahid Beheshti University, Tehran, Iran.
10.22034/analysis.2026.2084069.1190
Abstract
One of the difficulties in the Law of damages and tort law is distinguishing between the two concepts of “Loss of profit” and “Loss of chance / Opportunity to gain or making profit” (in other words, Loss of Profitability), regarding the sale of a product (goods, Intellectual property, etc.) which have significant differences both theoretically and practically. The similarity between these two concepts is such that many researchers and judges in their issued judgments, either consider them identical or use these terms interchangeably without attention and focus to their distinctions. If the product that has been sold is a film, such a distinction becomes even more difficult due to certain characteristics of this type of product: 1. The intangible nature of such assets before production (movie-making) 2. Non - deceasing of asset value and 3. High uncertainty until release. The judgment under analysis here is among those that, while rejecting any award of damages to the plaintiff due to the specific circumstances of this case and also because of analysising the case just as intellectual property law without considering to other dimension especially law of damages, clearly demonstrates a conflation of these two concepts in the language used. Therefore, on the occasion of its issuance, the opportunity was taken to – based on library research and using a comparative - analytical approach distinguish between these two concepts of damages in general to examine their application to losses incurred in the field of the film production. The findings of this research indicate that, for applying these two damages in this specific context, distinguishing between pre-production and post-production stages is essential. Also, accepting a broad interpretation of the "property" as well as the moral dimensions of personalities in accordance with the requirements of today's world, is another suggestion that can be presented in this regard.
Keywords
Unauthorized screenplay adaption
Loss of profit
Loss of profitability
Counterfactual
Non-decreasing asset value
Databases
1.      Aghian, Daniel, (2019), “Proving the Money Trail: The Importance of Causation in Lost Opportunity Claims”, Precedent AULA, vol: 17,
Available at: Https://www5.austlii.edu.au/au/Journals/precedentAULA/2019/17.html.
2.      Azine, Seyed Mogammad, (2024), Comparative Study of Civil Liability resulting from the Lost Treatment Opportunities in the Common Law and Iranian Legal Systems, published in the Collection of Articles on Private Health Law (written by a group of researchers), Volume 2, Tehran: National Center for Health Law Research, (in Persion).
3.      Black, Vaughan, (1998), “Not A Chance: Comments on Addams, The Valuation of Chance”, Canadian Business Law Journal, vol: 30.
4.      Burnett, Gill, (2020), “The Doctrine of Loss of Chance: Recent Developments”, Available at: docbreachcroft.com/en/what-we-think/the-doctrine-of-loss-of-chance-recent-developments.
5.      Chance, Don. M, Hillebrand, Eric. T & Hillard, Jimmy. E, (2005), “Pricing an Option on a Non-Decreasing Asset Value: An Application to Movie Revenue”, Louisiana State University, DOI: 10.2139/ssrn.870793.
6.      Choi, Yong-Jae, Min, Chung-ki, Park. Chanyul, (2020), “Effects of Trade Barriers and Cultural Distance on the Domestic Market Share in the Film Industry”, World Trade Review, vol: 19, Issue. 1.
7.      Conway, O, (1997), “Mixing Business with Pleasure”, Risk, vol: 10.
8.      Eisenberg, Melvin Aron, (1998), “Probability and Chance in Contract Law”, UCLA Law Review, vol: 45.
9.      Elberse, A. and Eliashberg, J., (2003), “Demand and Supply Dynamics for Subsequentially Released Productions: The Case of Motion Pictures”, Marketing Science, vol: 22.
1.      Ghasemi, Hasan, Arabian, Asghar, (2025), “A Conceptual and Exemplary Re-examination of Intellectual Property (Challenges and Organization of Its Characteristics and Types in the Light of Jurisprudence and Comparative Law, Journal of Research and Development in Private Law, vol: 2, No. 4. doi: 10.22034/jpl.2025.2065576.1220 (in Persian).
10.   Karanam, Ramkishore & Sivaraman, Preethi, (2025), “Loss of Profit and Profitability: Distinct Concepts Frequently Confused”, Available at: www.scconline.com/blog/post/2025/06/11/loss-of-profit-and-profitability-distinct -concepts-frequently-confused.
11.   Katouzian, Naser, (2007), Introductory Course on Civil Law: Property and Ownership, 15th edition, Tehran, Mizan Legal Foundation, (in Persian).
12.   Kazemi, Mahmoud, (2001), “Loss of Opportunity Theory in Civil Liability Law”, Law and Political Science, vol: 53, (in Persian).
13.   Kumar Singh, Pragyesh, Asthana, Spana, (2025), “Financial Sustainability in the Film Industry: Challenge, Strategies and Future Directions”, International Journal on Science and Technology, vol: 16, Issue. 3.
14.   Liu, Benjamin, (2022), “Assessing Damages for Loss of Chance”, Journal of Contract Law (JCL), vol: 38, Available at: Http://dx.doi.org/10.2139/ssrn.4541168.
15.   Mirshekari, Abbas, (2020), “Comparative Study of Imitation of Another Personality In the legal Systems of the United States, Britain, Germany, France and Iran”, Journal of Comparative Law, vol: 7, No. 14, Issue. 2, (in Persian).
16.   Mirshekari, Abbas & Abdi, Mona, (2026), “Expectation or Reliance: An Analysis of the Arbitration and Judicial Decisions in a Telecommunication Services Case Regarding the Criteria for Evaluation of Lost Profit”, Analysis of Judicial Decisions Journal, vol: 4, Issue. 8, doi: 10.22034/analysis.2025.2073654.1123 (in Persian).
17.   Moratova, Anna, Ignatov, Dimitry, (2022), “Evaluation of Influence of Movie Title Texts and Features on Movie Rating Prediction”, Macs Pro 2021 (Conference).
18.   Pinn. Julian, (2009), “Behind the Scenes of the Global Film Industry”, International Organization for Standardization (ISO) Focus, April 2009.
19.   Pools, Michael & McMahon, Heather, (2021), “Loss of a Chance in Commercial Transactions: Where Are We Now?” Butterworths Journal of International Banking and Financial Law, no. June 2021.
20.   Pryor, Jeremy, (2007), “Lost Profit or Loss of Chance: Reconsidering the Measure of Recovery for Lost Profits in Breach of Contract Actions”, Regent University Law Review, vol: 19.
21.   Ravid, S,A, (1999), “Information Blockbusters and Stars: A Study of the Film Industry”, The Journal of Business, vol: 72.
22.   Ribeiro, Robert, (2005), Commercial Litigation: Damages and other Remedies for Breach of Contract, Thorogood Publishing.
23.   Rhee, Robert, (2013), “Loss of Chance Probabilistic Cause and Damage Calculation: The Error in Matsuyama v. Birnbaum and the Majority Rule of Damages in Many Jurisdictions More Generally”, University of Maryland, vol: 39.
24.   Safaee, Seyed Hossein & Hosseini, Ehsan, (2021), Introductory Course on Civil Law: Persons and Property, Volume 1, Third Edition, Tehran: Mizan Legal Foundation, (in Persian).
25.   Sawhney, M.s and J. Eliashberg, (1996), “A Parsimonious Model for Forecasting Gross Box-Office Revenues of Motion Pictures”, Marketing Science, vol: 15.
26.   Siminoff, J.s and Sparrow, I.R., (2000), “Predicting Movie Grosses: Winners and Losers Blockbusters and Sleepers”, Chance, vol: 13.
27.   Strassfeld, Robert, (1992), “If…. Counterfactual in Law”, George Washington Law Review (Case Western Reserve), vol: 60.
28.   Tomlin, Jonathan. T & Merrel, David. R, (2006), “The Accuracy and Manipulability of Lost Profits Damages Calculations: Should the Trier of Fact Be “Reasonable Certain?” The Tennessee Journal of Business Law, vol:7.
29.   Zhu, Siqi, (2024), “Financial Analysis and Risk Study of Global Film Companies: A Case Study of Warner Bros. Entertainment, Inc.”, Highlights in Business Economics and Management, vol: 24.