Entertainment Litigation Blog

Writers on both coasts officially ratified the WGA's new pact with the major studios. The agreement, accepted by the WGA's ruling board over two weeks ago on February 10, provides writers with concessions on issues that fueled their strike. These concessions include provisions governing writing for "new media" and a compensation structure for content re-used in new media. The three year deal runs through 2011. The writers ratified this new deal with over 90% in favor of the new agreement.

With the writers' new deal, the focus now shifts to the Screen Actors Guild, whose contract with the studios is set to expire on June 30. Talks between the actors and the studios are set to begin shortly.

NBC filed a lawsuit on Friday, January 25, 2008 against the creator and executive producer of its three "Law & Order" series, Dick Wolf. The lawsuit reveals a dispute between Wolf and NBC over the terms of his contracts for the three highly successful programs and seeks the court's intervention to interpret -- or reform -- the agreement between the parties.

According to NBC's complaint, Wolf takes the position that the parties agreed that the 2 season guarantee means that, should NBC terminate any of the Law & Order series, he is entitled to 2 years of producing fees, essentially as a severance or "kill fee." NBC disputes that interpretation. NBC claims that the parties agreed that NBC's promise of a 2 season guarantee means that, if NBC decides not to order an additional season of episodes, NBC would be on the hook only for the remaining year on the prior 2 year order.

The parties were unable to resolve their differences during pre-lawsuit negotiations -- and rumors abound that one or more of the Law & Order series are in trouble and could be cut from NBC's lineup.

Courts are generally loathe to change the terms of written contracts. So NBC has its work cut out for it to convince the court to re-write the agreement to conform to its understanding. And NBC claims that the agreements themselves are confidential in deciding not to file the documents with its complaint. So while it's difficult to analyze the exact dispute between the parties over interpretation of unseen documents, those details will eventually become public if the parties continue to litigate the case in the courts.

The Directors Guild announced a tentative collective bargaining agreement with the Alliance of Motion Picture and Television Producers (AMPTP). The DGA's description of their tentative deal can be found here. The directors received concessions on issues relating to jurisdiction over new media as well as on compensation for internet downloads and other new media.

The widely anticipated agreement now increases the pressure on the writers, who are entering the third month of their work stoppage. Whether the writers think the directors' agreement is sufficient remains to be seen.

The Writers Guild of America strike is now entering its third month. Production on film and television projects have ground to a halt. Yet, as my JMBM colleague, E. Barry Haldeman, suggests in his Malibu Times op-ed piece, the end may be in sight.

The WGA has signed "interim" agreements with independent production companies and smaller studios, which could signal a break in the ranks of the studios which have held firm against the writers' demands. The Weinstein Company, the newly revamped United Artists and David Letterman's Worldwide Pants Production Company are among the companies who have reportedly signed such interim agreements with the WGA. Those companies are now free to resume production on their projects.

In addition, the Directors Guild reportedly has achieved some progress in its "pre-negotiations" with the AMPTP. Reports suggest that the directors can reach agreement with the AMPTP in a matter of a couple of weeks.As Barry writes, these recent events give some hope that the writers' strike can also be resolved in short order.

However, the WGA and the studios/networks have recently taken adverse actions against each other, which suggests that a resolution is not imminent. The WGA has pressured networks and studios by refusing the grant waivers for the upcoming awards season. Having reduced the Golden Globes to a reading of award winners, the Oscars and the Grammys -- usually a time for celebration in the entertainment industry -- are now in jeopardy. On the other side, ABC Studios, CBS Paramount Network TV, Warner Bros. TV, 20th Century Fox TV and Universal Media Studios have started to terminate overall deals with writers and producers. Representatives of the terminated talent vow revenge. Thus, the end result of both sides continuing to draw blood from each other is that nothing is getting produced in Hollywood.

If both sides persist in continuing this fight, the obvious conclusion is that darker days for the industry lie ahead.

E. Barry Haldeman, one of my colleagues in the JMBM Entertainment Group, wrote an interesting op-ed piece for the Malibu Times on the WGA strike. You can read his piece here. As Barry writes, the principal issue preventing a deal with the writers seems to be how to handle, and divide revenues from, new media such as cell phones and the internet. Not surprisingly, each side is wary of giving much ground because of the potential ramifications as these new media become more popular. Time will only tell if the parties will compromise on their positions.

The season premiere of the television show, Desperate Housewives, on September 29, 2007 provoked controversy when one of the show's punch lines took aim at the Filipino medical community. Teri Hatcher’s character, Susan, discusses with her doctor the possibility that she suffers from an early onset of menopause. Not pleased with his diagnosis of her condition, Ms. Hatcher quips that she would first like to check the doctor’s diplomas “to make sure they’re not from some med school in the Philippines.” Not surprisingly, the Filipino-American medical community was highly offended by this remark.

As a Filipino-American and member of the Board of Governors of the Philippine American Bar Association (PABA), I was incredulous that such a remark could make it through network standards and practices. The remark was insensitive, stupid and, frankly, not funny. I wrote to convey PABA's concerns to ABC's President of Primetime Entertainment on October 4, 2007. You can view my letter here.

ABC has since issued an apology and promised to excise the offending remarks from future showings of this episode.

Not every member of the Filipino medical community has been placated by ABC's actions. Some have called for legal action against ABC for "defamation." As dumb and insensitive as the offending line may have been, equally dumb would be any litigation against the show or ABC. If ethnic groups or women could file litigation as a result of a negative portrayal of that group in the media, our already-overburdened court system would quickly collapse from the weight of the new cases.

I am all for taking ABC and the show to task for being insensitive and callous in their portrayal of the Filipino medical community. That is our right under the First Amendment. But any lawsuit would equally offend those principles -- and would be counterproductive and a complete waste of resources. Hopefully, cooler heads will prevail.

These are obviously my personal views and not necessarily those of my firm or my partners.

Producers Alan Ladd Jr. and Jay Kanter obtained a $3.2 million verdict against Warner Bros. Ladd and Kanter, under the Ladd Co., produced 12 films for Warner Bros., including Blade Runner, Chariots of Fire and the Police Academy movies. The case involves the practice of studios packaging or bundling films together when licensing or distributing those movies to other outlets. Ladd and Kanter claimed the Warner Bros. shortchanged them when it packaged those movies with less desirable films for distribution and assigned a license fee which did not reflect their films' actual worth. In a closely watched trial, the jury sided with Ladd and Kanter. Warner Bros. is expected to file post-trial motions to reduce the verdict and, if unsuccessful, to appeal.

Nestle USA won its appeal of a $15.6 million jury verdict against it in favor of a former model who posed for the label of its Taster's Choice coffee. The model asserted statutory and common law appropriation claims for the wrongful use of his image and violations of his right of publicity. A jury found Nestle liable for $333,000 in damages and over $15.3 million of Nestle's profits which the jury attributed to the use of the model's immage. The California Court of Appeal reversed.

The Court of Appeal's decision recites a few important principles. First, the opinion held that the single publication rule applied to these misappropriation claims. The impact of that holding is that the allegedly wrongful publication of an image gives rise only to one cause of action. Second, the court's opinion held that, for statute of limitations purposes, the discovery rule did not apply to those who had "a meaningful ability to discover the violation." The court directed the trial court to determine whether the model had such an ability to discover the alleged violations of his rights and to limit any claims to two years from the date the violations should be discovered.

Click here to view the court's opinion

The United States Equal Employment Opportunity Commission (EEOC) and Universal Pictures began a federal court trial on Tuesday in Los Angeles. The case is unique in part because the assistant director (Frank Davis) was fired from the movie "2 Fast 2 Furios" over the objections of the movie's director, John Singleton. The EEOC alleges that Davis' firing was because he is black. Universal denies the allegation. Singleton, who is also black, has told others that he suspected that race played a role in Davis' dismissal. Published reports indicate that Singleton's speculation about the motivation for Davis' firing will not be admissible. LA Times, June 12, 2007

YouTube has once again become a target of copyright infringement litigation. A Nashville-based music publisher filed a class action suit on June 6, 2007 against YouTube and its parent, Google, in Tennessee district court. The publisher claims that YouTube will not make its highly touted content identification program available unless a copyright holder signs an agreement with YouTube and become one of its "strategic partners." YouTube denies the allegations. View the complaint in Cal IV Entertainment v. YouTube here.