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How Not to Get Whacked by Creatives

Just before this past Christmas, David Chase won a protracted court battle over the creation and revenue of The Sopranos. The lawsuit, filed in 2002, ran longer than most successful television series.

Could this costly and distracting litigation have been avoided? Maybe, if creator Chase had followed best practices in film and television development.

The suit was brought by Robert Baer, an aspiring writer and former New Jersey prosecutor who, in 1995, helped Chase arrange a research trip to the Garden State. Baer introduced Chase to police detectives and a waiter named “Tony Spirito,” who took Chase on a tour of mob-associated landmarks and recounted mob lore.

Baer testified that he refused Chase’s offer of immediate payment and the parties agreed instead that Chase would “take care” of him if the show were a success. When he wasn’t “taken care of,” Baer ultimately brought suit. All but one of Baer’s claims were dismissed in pretrial proceedings, and the New Jersey jury which heard the remaining claim quickly decided that Chase owed Baer nothing.

After the verdict, Chase is reported to have said, “This was like a fly buzzing in my bathroom for seven years and we finally swatted it.” While the victor may get the last word, Chase, in hindsight, may have wished for a different script.

The best practice in film and television project development is to have a comprehensive written agreement in advance with every “creative worker” — i.e., anyone who touches on artistic aspects of a project. This category extends to location scouts, researchers and consultants — functions not usually thought of as creative.

Here are the basics: A first priority for a creator in Chase’s shoes should be to obtain written acknowledgment of the “work-for-hire” status of each creative worker. Work for hire is a principle of U.S. copyright law pursuant to which the moving force behind a creative work can be treated as its author and owner. In many instances, this means that a corporate employer will be deemed to be the copyright owner.

The creator of a movie or TV series will want assurance that, except as specifically agreed in writing, the creative worker will not claim a right to payment, attribution, or creative or business control. They will also want assurance that in the event of a dispute, the creative worker will not seek an injunction, but rather will be limited to a damages remedy.

An employer has ready opportunities to obtain these assurances prior to, and as a condition of, payment to the creative worker. The same opportunities may not be present where payment terms have not been worked out or are conditional. If it is not practical to present formal documentation to a prospective worker before work begins, then the employer, with counsel, should develop a strategy to protect the employer’s ownership.

In a different case, a court warned about the risk of “claimjumping” by “research assistants, editors, and former spouses, lovers and friends” against “authors who [simply] talked with people about what they were doing.” While there is no magic bullet against such claims, creators need to be mindful of the risks and take precautions.

It can be awkward securing advance written clearance from a casual source, much less a former prosecutor. But just ask David Chase what may happen if you don’t.