The studio that brought you “Batman” may soon have an archrival of its own – and he’s no joker.
After a string of plaintiffs’ victories against major entertainment companies, more and more little guys are finding the courage to duke it out with the heavyweights.
And the calculated arrogance long used by the studios to fend off legal challenges from profit participants is backfiring: It’s not only attracting more and more lawsuits, but it may be helping plaintiffs win them.
Now Pierce O’Donnell, the swaggering attorney who’s giving Paramount fits in the Art Buchwald case, is considering filing suit on behalf of net profit participants in Warner Bros’ “Batman.”
“I believe their claim is meritorious and I’m reviewing the matter,” says O’Donnell, refusing to identify his clients. But industry sources say the likely plaintiffs are Benjamin Melniker, once a top executive at MGM, and Michael Uslan, the film’s executive producers, along with a group of investors in the boxoffice buster. The producers were travelling and unavailable for comment.
If the suit comes, attorneys predict it would be at best a public relations nightmare for the studio. They would have to explain why the sixth-highest grossing film of all time, which has so far raked in over $253.4 million, is still $35.8 million in the red, according to studio financial statements.
The threat of a suit also hits just as the studio revs up production for the Bat-sequel, set to go before cameras in August. Warners exec v.p. and general counsel John Schulman refuses to comment on the potential suit, except to say that “no claim has been filed yet.”
In court, Warner’s potential adversary has a way with words to rival the Riddler. In representing Buchwald and producer Alain Bernheim in the “Coming To America” trial, O’Donnell has honed his rhetoric about the industry’s vices, developing a reputation as the Norman Schwarzkopf of studio bashers.
“There is a contempt and arrogance at the studios, a sense of being above the law,” thunders O’Donnell in his best William Jennings Bryan voice. “Their attitude is, ‘We know the business. We, the elite insiders who go to Morton’s, the Polo Lounge and Le Dome. We cognoscenti know how it really works, and who is some judge, who only makes $100,000 a year, to come meddling in our affairs?’ ”
Meddling with a vengeance
Last December, California Superior Court Judge Harvey Schneider “meddled” with a vengeance, holding that Paramount had not only ripped off Buchwald’s idea for “Coming To America” but had also used an “unconscionable” definition of net profits to avoid fully compensating him. In the wake of that decision, O’Donnell has had over 150 requests for representation on net profit issues, about 10% of which he figures are “meritorious.”
O’Donnell is now writing a book for Simon & Schuster about the Paramount case with Los Angeles Times reporter Dennis McDougal. Tentatively titled “Fatal Subtraction,” he touts it as “a story of the sophisticated use and abuse of power.”
The prospect of a Bat-suit comes in the midst of Hollywood’s most litigious season in memory.
“Just as war is an instrument of policy, litigation is now an accepted instrument of business,” says Bert Fields, one of the most feared entertainment litigators practicing today, with a client list including Michael Jackson, Dustin Hoffman and Warren Beatty. “If people were once reluctant to go to war against studios to get what they feel they are entitled to, they aren’t anymore.”
Ironically, the studios’ historic strategy to counter lawsuits may be spurring the current spate of them. The majors have long held a hard line in legal matters – an intractable stance designed to scare off bone-pickers. That worked for decades, but as Paramount found out, judges and juries now seem all too willing to interpret intransigence as arrogance.
And for all the resources at their disposal, it’s now clear that giant entertainment companies aren’t litigation-proof. Plaintiffs are discovering that big companies from Exxon to Paramount have an Achilles heel: a public perception, real or not, of condescension and greed.
Some of the other litigants who have recently taken on entertainment leviathans are:
* Singer Peggy Lee, who last month won a $2.3 million jury award against Disney for video profits for her songs in the toon classic “Lady And The Tramp.”
* Producer and ex-“Beverly Hillbillies” star Max Baer Jr., awarded $2 million last February from a California jury that found ABC wrongly interfered with his plan to buy movie rights to the Madonna hit “Like A Virgin.”
* Ricardo Montalban, currently suing Columbia Pictures TV-for over $10 million in net profits allegedly owed to him under his contract for the hit 1977 to ’83 tv series “Fantasy Island.”
* And last week, even the cuddliest Hollywood stars became enmeshed in a vitriolic legal battle. The Jim Henson company filed suit against Disney for unlicensed use of the Muppet characters as Henson execs publicly complained of the Disney company’s “total arrogance.” Disney swiftly struck back with a counterclaim alleging that the Henson heirs were merely trying to extract “different terms and more money for their father’s company than Disney and their father ever contemplated.”
The leitmotif in these suits is as old as the Old Testament: David takes on Goliath.
“Judges and juries tend to favor the little guy over the big corporation,” observes Fields, who’s been suing studios for over 20 years. “I love it when the studio walks into the courtroom with a team of over five lawyers, and I’m there all alone with my client.”
In his trial, Baer’s attorney Richard Rosen hammered away at ABC’s “power and arrogance.” The jury believed Baer’s claim that ABC coerced the “Like A Virgin” songwriters to break an agreement giving Baer film rights to the hit by threatening suit unless the writers handed the rights to the network. Rosen’s ace in the hole was the folksy appeal of his celebrity client, son of the heavyweight boxing champ and still known to millions as the slow-witted tv hillbilly, Jethro.
You want stubborn?
“Studios often end up standing by indefensible positions because they’re so intransigent,” says Peter Laird, a prominent entertainment attorney who repped Bette Midler in a suit last year against Ford Motor Co. and the Young & Rubicam ad agency. That suit charged that a 1985 auto commercial used an unauthorized duplication of Midler singing “Do You Want To Dance,” and, after Ford was dismissed as a defendant, Midler was awarded $400,000.
Legal experts ascribe the increase in entertainment legal tussles to a number of factors, not least of which is the growing intricacy of Hollywood deals.
“The more complex this business becomes, the more misunderstandings there are and the more polarized the parties become,” says Neil Papiano, who represented Peggy Lee in her lawsuit against Disney.”
“Just as industrial law was a burgeoning area from the 1930s through the ’60s, entertainment and communications-related law is a growth field right now as leisure industries become more central to the country’s economy,” says UCLA communications law professor Dan Brenner. As proof, prof cites enrollment in his entertainment law course which has doubled this year to 87 students.
Yet there are still formidable barriers to suing studios and networks. “It’s very taxing to be a plaintiff, financially, emotionally and mentally,” says Laird.
This week Peggy Lee said, “I wouldn’t be suprised if I’ve now been blacklisted” as a result of her Disney suit.
Says O’Donnell: “These suits are not for the fainthearted or the underfinanced.”
The real test of whether the current litigation surge continues will come when the Buchwald case is appealed. Most Hollywood attorneys expect the decision to be overturned, which would clearly discourage other profit participants from taking their grievances to court.
If that happens, O’Donnell says he hopes the Buchwald case, at least, will be fondly remembered because “for one brief shining moment, David beat Goliath.”