Frank Darabont’s “erratic and unprofessional performance” as showrunner of “The Walking Dead” led to his firing in July 2011, according to the latest round of court filings in Darabont’s lawsuit against AMC Networks over his profit participation in the hit drama series.
AMC and Darabont filed motions for summary judgment early Thursday in New York Supreme Court. AMC is seeking to have the case dismissed while Darabont’s team is looking for a ruling on the specific test that should applied to the fairness of an element of the contracts he struck with AMC for the show in 2010 and 2011. The sides are expected to argue the motions in court on Aug. 24. Darabont first sued AMC in late 2013.
AMC’s latest filing included a host of supporting documents, including a copy of an expletive-laden email Darabont sent to “Walking Dead” executive producer Gale Anne Hurd and others.
AMC’s filing paints a picture of Darabont being overwhelmed by the demands of running a television series but unwilling to take advice or direction from others. Darabont, a three-time Oscar nominee, had little experience in TV before he shepherded the adaptation of Robert Kirkman’s “Walking Dead” graphic novel for AMC.
“I am in a state of boiling rage right now,” Darabont wrote in a 2011 email to Hurd regarding problems with production on the first episode of “Walking Dead’s” second season. “Everybody especially our directors better wake the f— up and pay attention or I will start killing people and throwing bodies out the door.” In an email from 2010, Darabont vented his anger at two writers on the show, saying he should have “hunted them down and f—ing killed them with a brick, then gone and burned down their homes.”
In a deposition excerpt included in AMC’s filing, former AMC programming chief Joel Stillerman described Darabont’s shortcomings as his inability to deliver scripts on time, to adequate supervise the writers room and to manage the budget of series. What’s more, Darabont’s “volatile and disturbing interactions with staff and talent were impacting production,” the filing states.
In Stillerman’s deposition he asserts that Darabont “was quite bad at his job.” As work on season two began in 2011, AMC had “grave concerns” that Darabont’s management of the show “was so poorly handled that we gauged them to be jeopardizing the enterprise itself and certainly the long-term sustainability and success of that series.”
In an affidavit responding to AMC’s filing, Darabont said that the personal allegations are irrelevant to the lawsuit. He also sought to put the emails in context, saying that they were sent “during an intense and stressful two-year period of work during which I was fighting like a mother lion to protect the show from harm.”
“Each of these emails was sent because a ‘professional’ showed up whose laziness, indifference, or incompetence threatened to sink the ship of production and added unfair and unnecessary burden to their colleagues in the cast and crew,” Darabont wrote. “My tone was the result of the stress and magnitude of this extraordinary crisis. The language and hyperbole of my emails were harsh, but so were the circumstances. As for the enormous problems they describe, I stand by these emails to the last detail.”
Darabont’s suit maintains that AMC has breached its contract that called for him to receive 15% of the profits (or modified adjusted gross receipts) from the show. AMC counters that his contract called for his profit participation stake to rise to 15% only if he completed all of season two as showrunner and executive producer. AMC’s filing maintains that Darabont has been paid 10% to 11.875% of the profits depending on the level of his contribution to various episodes.
In a statement on Thursday, Darabont’s attorney, Dale Kinsella, said that AMC had recently increased its payouts to Darabont and CAA, but that the amount is a “mere fraction” of what they are owed.
“Unfortunately, this litigation gamesmanship by AMC and the Kasowitz firm is too little and too late, and in no way relieves AMC of its contractual liability to our clients,” Kinsella said. “Furthermore, Mr. Darabont’s emails are an irrelevant distraction from the real issues in the case. We look forward to arguing the motions on August 24, and to the Court granting plaintiffs’ motion and denying AMC’s motion.”
The crux of the of the suit is the battle over Darabont’s allegations that AMC engaged in self-dealing with the “imputed” license fee that AMC pays for the show. Because the series is produced by AMC Studios, Darabont’s camp asserts that AMC paid a license fee for the show that was woefully below market value for the massive hit that “Walking Dead” became. The low license fee limits the pool of potential profits to be shared by participants like Darabont and CAA, which reps Darabont and earns a packaging fee on the show.
AMC counters that there was no self-dealing because there never was a formal license fee agreement between the two AMC divisions. The imputed license fee formula was used for the purposes of setting profit participation deals. AMC’s filing includes details from other “Walking Dead” profit participants, including current showrunner Scott Gimple and exec producer Greg Nicotero, who agreed to the same imputed license fee definition that Darabont has challenged.
According to contracts included in the filing, the original formula for the fee was that it would be calculated at 65% of the cost of production with a cap of $1.45 million in season one. The cap would rise to $1.75 million in season two, with 5% bumps per season thereafter.
Darabont’s filing asserts that the test to be applied in gauging the fairness of the license fee should involve comparing “Walking Dead” fee to those AMC paid to outside studios for other shows, notably Sony Pictures TV on “Breaking Bad” and Lionsgate TV on “Mad Men.” AMC argues that it rejected Darabont’s lawyer’s efforts to insert that language in his contract. Instead, AMC agreed to give Darabont a “favored nations” clause ensuring that if any other profit participant on “Walking Dead” negotiated a deal that called for a more generous definition of the imputed license fee, Darabont’s definition would rise accordingly. According to AMC, that recently happened in a deal negotiated by Nicotero.
The filing also includes detail of contracts signed by notable talent on other AMC projects that accepted AMC’s imputed license fee formula, including “The X-Files” creator Chris Carter.