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Advanced Contracts: TV Production
Rutgers University, Newark School of Law
Jacobs, Douglas

Advanced Contracts: TV Production                Douglas Jacobs                     Fall 2014
Burstyn v. Wilson (1952)—Motion pictures constitute speech and a NY statute banning sacrilegious movies is unconstitutional.
Bindrim v. Mitchell (1979)—The issue of whether or not a character is a representation of the plaintiff in question is if a reader with knowledge of the surrounding circumstances could reasonably understand that the words referred to the plaintiff. (The work was a novel and fiction isn’t safe from defamation claims.)
Clark v. ABC (1982)—Defendant aired presentation on prostitutes and showed image of plaintiff while discussing and contrasting prostitutes. Summary judgment improperly granted in defendant’s favor. Trial court had duty to determine as matter of law whether broadcast was reasonably capable of defamatory interpretation. Plaintiff being portrayed as a prostitute clearly defamatory under Michigan law. ABC has qualified privilege which protects it against liability even where statements were defamatory, but privilege lost where actual malice as defined in NYT v. Sullivan.
Court must decide as a matter of law whether: 1) There is a recognized public or private interest which would justify the utterance of publication; 2) Once the privilege applies, the Court must decide whether the utterance falls within the scope of the privilege
Elements of the Privilege: 1) good faith; 2) an interest; 3) a statement, limited in scope to this purpose; 4) a proper occasion; 5) the publication is in the proper manner and to the proper parties only; 6) this privilege doesn’t extend to plaintiffs who are not the focus of the publication = merely incidental.
Plaintiff’s participation was merely incidental so it wasn’t in the public interest and the privilege doesn’t apply
No constitutional principle requires plaintiff to prove actual malice. The First Amendment doesn't apply to misstatements of fact. Plaintiff is not public figure, not generally famous or notorious, not limited public figure.
Limited public figure requires: 1) “public controversy”. This is all controversies of interest to the public and might be satisfied here. 2) nature/extent of individual’s participation in controversy must be ascertained by considering three factors: a-Extent which participation in the controversy is voluntary; b-Extent there is access to channels of effective communication in order to counteract false statements; c-Prominence of role played in public controversy
Court says plaintiff didn’t voluntarily participate, she has no access to channels to counteract the false communication, her participation was merely incidental.
Messenger v. Gruner (2000)—In right of privacy claim, defendant moved for summary judgment, arguing that the photographs of the plaintiff has been used to lustrate a newsworthy column, the pictures had a real relationship to the article and the column was not an advertisement in disguise.  Under NY Civil Rights Law Sections 50 and 51, the plaintiff cannot recover if the defendant used the plaintiff’s likeness in a substantially fictionalized way in conjunction with a newsworthy column without the plaintiff’s consent. The test is not whether plaintiff is a public or private figure. NY doesn’t recognize a common law right of privacy.
Shulman v. Group W (1998)—Plaintiff’s accident was broadcast and she brought suit for invasion of privacy and unlawful intrusion. Summary judgment was proper for the first claim because the newscast was newsworthy. However, triable issues existed as to the second claim, and defendants had no privilege to intrude on plaintiff’s seclusion and private talks.
Sanders v. ABC (1999)—The intrusion of privacy has two elements: 1) intrusion into a private place, conversation or matter; 2) in a manner highly offensive to a reasonable person. An employee has a reasonable expectation that his conversations will not be secretly videotaped even though such conversations may not have been completely private, assuming the invasion is highly offensive and taking into account the nature of the conduct and surrounding circumstances.
Dora v. Frontline (1993)—There are two types of appropriation: 1) Right of publicity; 2) Appropriation of name and likeness that brings injury to the feelings. “I just wish to be left alone”. The plaintiff cannot succeed on the latter if the defendant’s use of his image and likeness had public interest and social value. Unless publishers knew the statements were false or published them in reckless disregard for the truth, publication of the plaintiff’s interview is constitutionally protected.
Cardtoons v. Major League Baseball Players Association (1996)—Free speech (in the form of parody) is more important than the plaintiffs’ right of publicity in this case.
Polydoros v. 20th Century Fox (1998)—The filmmakers’ release of a fictionalized movie didn’t invade the plaintiff’s privacy and is protected by the First Amendment. The fact that the movie was made for profit doesn’t remove that constitutional protection. The plaintiff cannot recover just because the defendants used a name that sounds like the plaintiff’s name or employed an actor who resembles the plaintiff at the age of 10.
White v. Samsung (1992)— A person’s right of publicity may be usurped even if the offending use did not incorporate that person’s likeness. Unlike C.C.C §3344, the common law of Right of Publicity is not confined to the use of name or likeness. Such limitation would weaken the rights of celebrities to commercially exploit their identities. Even though the plaintiff didn’t show evidence of actual confusion, there is a genuine issue of material fact regarding her Lanham Act claim and the likelihood of confusion. The defendants’ parody defense doesn’t work, because the purpose of the ads was to sell products and not do a spoof of the plaintiff.
Wendt v. Host (1999)—The actors who played two characters in Cheers were able to get an injunction against the defendant claiming that the defendant’s use of the copyrighted characters infringed on their rights of publicity.
Guglielmi v. Spelling (1979)—Rudolph Valentino’s nephew brought a right of publicity claim after the defendant produced a fictionalized film based on his the actor’s life. The right of publicity is not descendible. Valentino was a Hollywood star and his life and career are a part of the cultural history of an era. The film is under constitutional protection.
Comedy III v. Saderup (2001)—The defendant’s use of the plaintiffs’ image violated their right of publicity. The defendant’s work is not sufficiently transformative and lacks originality.
Hustler v. Falwell (1988)—Parodies of public figures which could not be reasonably taken as true are protected against civil liability by the First Amendment, even if intended to cause emotional distress. Damages cannot be awarded to the plaintiff.
Kelley v. Morrow (1986)—The issue is whether plaintiff was aware that he waived his right of privacy when he signed the contract. The burden is on the party claiming a waiver to prove it by evidence that does not leave the matter doubtful or uncertain and the burden must be satisfied by clear and convincing evidence that does not leave the matter to speculation. The and/or interpretation was okay, but you still cannot defame someone. 
Miller v. Universal (1981)—Research is not copyrightable.
Maljack v. UAV (1997)—Pan and scan changes to a motion picture are copyrightable. The Copyright Office writing “format not copyrightable” on the certificate only means that the office couldn’t determine copyrightability with the information it had at hand.
Lone Wolf v. CBS (1997)—In comparing two characters to determine a copyright claim, the court should look at the total concept and feel instead of engaging in a detailed dissection of the characters.
MGM v. Honda (1995)—Characters such as James Bond can be copyrightable if they constitute the story being told.
CCNV v. Reid (1989)— Under common law agency principles, one who creates an artwork at the behest of another restrains the copyright unless he was an employee of the other.
What will the performer want in a TV contract?   Pay, credit, special perks, reversion or rights
Non-scripted shows:
What are the basic rights you need to get?
Right to use, their name and likeness
IP/Merchandising rights
Ancillary rights
Promotional rights
Digital rights
Some control over talent unlike scripted drama. They cannot go and do whatever they want. Sports is even stricter.
There’s also a difference in terms of IP rights negotiation.
Fiduciary duties of a lawyer: duty of care, duty of loyalty, duty of fair dealing. If you are also a manager or agent, you still have these duties.
Representing multiple talents–conflict
Liability is crucial.
If there is breach (the talent refuses to work), you can prevent the talent from working for someone else. But that might not be a solution if you are in production.
Defamation: An untrue statement that holds someone up to ridicule, hatred or other negative consequences. Slander (oral/transitory) and libel (written/fixed) are two prongs of defamation. In visual media, the difference is pretty much irrelevant.
Defamatory per se—The defamatory statement is without need for further explanation (different damages)

Renewal Contract's validity until 1998. 
The issues were 1) whether agreement with agency violated the CBA, 2) whether agency contract extended into Frasier and 3) whether agency was entitled to commissions from Frasier.
Under the CBA, any waiver of its provisions are not allowed unless there is written consent from SAG. Any attempted waiver without such consent is void.  The Settlement and Renewal agreements violated the CBA. However, an arbitration panel determined that the agreements were enforceable despite the CBA violation. 
CBA violations can be waived by SAG without following the writing requirement; when the parties are represented by counsel; when the waiver is consistent with the parties' assent; when the waiver benefits the SAG member. 
Here, SAG properly waived the variance between the CBA and the Agreements. The benefit to Grammer was his ability to get out of some of his contract with Artists Agency to receive theatrical motion picture representation from William Morris. 
Consulting fees paid to actor while he worked on television series were in connection with his television employment and the arbitration panel thus could award talent agency commission on such fees. 
Grammer allowed Artist Agency to represent him between January 1995 and June 1996 when the agreement was post-dated. In allowing Artist Agency to actively represent him and to pursue his interests, Grammer clearly intended for the representation to continue without interruption.
Variances between the CBA and Settlement did not void the Settlement. Valid contract existed between Grammer and Agency from the time of signing the Settlement Agreement to the time when the Renewal Contract went into effect.
Agency could be awarded commissions on consulting fees paid to actor when he worked on television series.
Raden v. Laurie (1953)—The plaintiff’s personal manager confined his work to developing his artist client’s poise and skills, and accompanied his client to auditions without seeking employment. Therefore, he is a personal manager rather than a talent agent.
Day v. Rosenthal (1985)—The defendant was Doris Day’s attorney and business manager. He didn’t advise the plaintiff to hire separate council to review the agreements signed between them.  He also got 10% interest in everything the plaintiff owned per contractual agreement. He tried to maintain control of the plaintiff’s finances and refused to produce records. The court decided that the defendant clearly breached his obligation as an attorney. By acquiring interest in the plaintiff’s finances and property, he engaged in conflict of interest violated several professional rules of conduct.
Ring v. Spina (1945)—The district court vacated plaintiff investor's temporary injunction against defendants, authors and agents, and denied plaintiff's motion for such injunction pending trial in an action for treble damages under the Sherman Act (anti-trust law), 15 U.S.C.S. §15. The court reversed the judgment and remanded the cause, holding that plaintiff showed prima facie grounds of potential recovery. The court held that there was a showing prima facie of an agreement in restraint of trade. The court also ruled that even without a showing of economic coercion as the final step in forcing plaintiff to sign the basic agreement of a dramatist's guild, plaintiff was precisely the type of individual whom the Sherman Act sought to protect from combinations fashioned by others and offered as the only feasible method by which an individual may do business. The court disagreed with the district court's comment that plaintiff's action failed because plaintiff sought at the same time rescission and enforcement of a contract.