Viacom Spike spat turns costly

5 New York court judges are conducting rehearing

The squabble over Spike continues to sting Viacom.

On Tuesday, Viacom said in court papers that it had already initiated a $50 million national ad and marketing campaign, $30 million of which would never be recouped, to promote cabler TNN’s switch to the handle Spike.

Five New York state appellate court judges are conducting a rehearing en banc. Viacom filed a petition for the rehearing when its request to overturn a preliminary injunction was denied last week. Both parties can appeal if the resulting decision (expected today) is not in their favor.

Claiming victory

In an interview with Court TV’s “Hollywood at Large,” set to air Friday evening, Spike Lee’s lawyer Johnnie Cochran said, “They have not done the right thing in misappropriating his name and so far it’s David two, Goliath nothing.”

In court documents, Viacom states that the suspension of name change would cost the network hundreds of millions of dollars in ad revenue, “as well as numerous categories of injury they have suffered and will continue to suffer, which are incalculable and therefore irreparable.” TNN’s 2002 estimated ad revenue was nearly $350 million. Under the “Spike” moniker, to which the net was supposed to have switched Monday, it had obtained commitments for 2003 and 2004 in excess of $100 million.

According to an affirmation submitted by Clara Kim, net’s senior VP of biz affairs and legal, the $500,000 bond that Lee was ordered to post by the lower court was grossly inadequate. Kim stated that the first week’s losses would exceed $16.8 million, with over $1.7 million lost in spot TV, $4 million in affiliate support and $1.5 million in production and development for programs based upon the relaunch that needed to be pulled.

Starting over

In her statement Kim also said that if the Spike name cannot be used, Viacom “will have to develop yet another brand for the network at considerable expense and in a virtually impossible timeframe, and all of the costs incurred to date to promote Spike TV and all of the goodwill acquired herein will be for naught.”

In the “Hollywood at Large” interview, Cochran says, “If they really want to make it a male network, why not call it Dave TV or Ralph TV?” Later in the interview, Cochran is asked about the timing of the suit and he responds that his first letter to cease and desist was sent in April, when the rebranding was first announced.

Cochran says, “They said, ‘No we’re not going to cease and desist, we’re Viacom.’ We had a series of meetings and they hired a lawyer to talk about settlement with us, but we could not work it out.”

That the suit has continued to this point has surprised some legal experts.

While acknowledging that Viacom stands to lose a great deal, attorney Martin Garbus of New York-based firm Davis and Gilbert believes that Lee is taking a large gamble. (Garbus repped Lee more than 10 years ago when Rodney King sued over use of videotape in “Malcolm X.”)

“I would assume Viacom got a legal opinion and did not act unknowingly,” said Garbus. “I think at the end of the day — unless there are corporate planning documents that said they would use stuff Spike Lee created for themselves — if that’s not there, then Lee is going to lose.”

Triple Spiked

In an April interview with TNN prexy Albie Hecht that appeared in the Philadelphia Inquirer, Lee, along with helmer Spike Jonze and “Buffy the Vampire Slayer” character Spike, are mentioned as inspirations.

“It’s one thing to be inspired by these people, it’s another to trade off a name,” Garbus said.

Lee is still committed to shoot a pilot for Viacom-owned Showtime.