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The Actors Strike Back: from Happy Days to Princess Leia, actors and actresses are reexamining their contracts and bringing claims

September 22, 2011 1 Comment »
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Actors, check your contracts!  That seems to be the rally cry of 2011 as an increasing number of actors and actresses are bringing claims for the sale of merchandise relating to movie and TV show licensing.  From the cast of Happy Days, the sheriff in The Dukes of Hazard, the bully in A Christmas Story, and even Princess Leia of Star Wars, the licensing and merchandising of these classic shows and movies have become fertile ground for lawsuits.

Just last month, it was announced that James Best, aka Rosco P. Coltrane of the Dukes of Hazard, filed a lawsuit alleging he may be owed as much as $25 million by Warner Bros.  According to his complaint, the contract Best had for his role in the 1980s TV show was specific about his entitlement to a share of merchandise royalties.  The complaint alleges that his contract entitled him to 5% of merchandising revenue from products that featured his identity, or 2.5% of total revenue for merchandise when other characters of the show were included.  Despite the contract provisions, he apparently hasn’t been receiving any such revenue, even though Dukes of Hazard licensing is an ongoing and successful endeavor for Warner Bros.

Earlier this year, the cast of Happy Days filed a claim on similar grounds against CBS Studios and Paramount Pictures.  The Happy Days suit addresses home video releases as well as licensed merchandise featuring the actors’ images.  Apparently, the suit was precipitated by one of the actors seeing Happy Days slot machines in casinos (which may have been around the same time that I was involved in licensing various Gilligan’s Island case members for slot machines).  The lawsuit seeks at least $10 million in damages as well as attorney’s fees.

Another recent claim has been brought by the bully in A Christmas Story.  The actor who played Scut Farkus claims that Warner Bros. has used his image without his consent in relation to certain consumer products.

Much of these disputes might be resolved by a careful reading, or judicial interpretation, of the actors’ contracts.  As it pertains to Zack Ward’s claim against Warner Bros., he reportedly was originally contracted for a small part in A Christmas Story.  When he was given the more prominent role of the bully, his contract was not adjusted or revised.  According to 23 No. 8 Westlaw Journal Entertainment Industry 11, as well as the pleadings in the complaint, Ward was therefore the only major character from A Christmas Story who did not contractually give away the right to license his likeness as manifest in the Farkus character.

In my experience, the contracts being written in recent years for actors’ and actresses’ services are much more specific, and typically address the types of issues that were overlooked decades ago.  I believe this is due in part to a higher level of awareness of these issues in the legal profession (if not the acting profession), as well as the much more systematic licensing and merchandising campaigns that are built into TV shows and movies these days.

Even with a contract in place that addresses ancillary issues like merchandising, problems can arise.  The actors who played Norm and Cliff on Cheers, George Wendt and John Ratzenberger, brought a claim over use of animatronic robots in Cheers-themed restaurants which delivered actual audio from the show.  While effort was made to make the robots look somewhat different than Wendt and Ratzenberger, there was no ambiguity as to who these robots were intended to represent.  The robots sat in the precise spot at the bar as the Norm and Cliff characters did in the show, and the voices of Wendt and Ratzenberger exchanging dialogue from actual Cheers episodes emanated from the robots.  The claim kicked around for a while before settling out of court.

In the early 1990s, Warner Bros. argued in a lawsuit against James Dean’s heir that it owned the Right of Publicity of James Dean altogether.  The contract for Dean’s acting services (for the three films of Dean’s short but mercurial career, East of Eden, Giant and Rebel Without A Cause) included a somewhat open-ended two-word clause which Warner Bros. interpreted as giving it ownership of Dean’s Right of Publicity.  The contract stated that Dean gave to Warner Bros. the right to photograph his “acts, poses, plays and appearances of any all kinds, and to produce and reproduce the same or any part of them by photography, printing, and all other methods, and to distribute and exploit the same in motion picture films, or otherwise.”  Those last two words, “or otherwise,” were the fulcrum point of Warner Bros.’ position.

The September 19, 2011 edition of Newsweek features an article by Carrie Fisher discussing Princess Leia licensing, entitled How George Lucas Stole Her Identity.   Fisher reports that she has teased Lucas over the years about how she sees her Princess Leia character on all manner of products, but that she never gets any share of the income.  Fisher says Lucas has never been apologetic about it.  Fisher’s essay even reports that there is a line of Princess Leia marijuana, though I doubt that is licensed by Lucasfilms, for obvious reasons.  Assuming it isn’t licensed by the Star Wars franchise, Fisher may have a viable right of publicity claim that could be asserted since the product does not come from Lucasfilms or tie in to her contract for the film.

Fisher closes by stating “Every so often, I wonder if Natalie Portman is getting more money than the none I’m getting. If she’s holding a check for Princess Amidala’s likeness in one hand and her Oscar in the other, that would piss me off.”

I’m sorry to say it, Mrs. Fisher, but she very well may be.

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