In a big day for entertainment lawyers, July 7 saw decisions in two contract disputes over participations in under-reported profits. In Johnson v Rysher, Don Johnson won his share of profits from co-ownership of Nash Bridges. In Celador v Disney, Celador won its share of profits from licensing the Who Wants to be a Millionaire? format. Despite occasional JD fantasies, I don’t work in entertainment law. But the two cases and others like them suggest interesting conversations across fields, about domains and approaches in the study of media regulation.
Studies in entertainment law (and economics) give careful attention to the day-to-day life of media industries and their regulation. In particular, they suggest the determinacy of dealmaking, contract, and industry organization, as a mode of regulation continuous with state law and policy. They tend to leave parts of the story untold, however, in understanding industrial relations as relations among already formed economic actors. In the trades, for example, Johnson and Celador were framed as demystifications of “Hollywood accounting” that distorted otherwise straightforward contractual relations. That frame captures much of what’s interesting about the cases (not least for anyone on Johnson’s or Celador’s Christmas lists). But it also neglects how industry roles and functions are constructed in regulated industrial relations. Cultural economics suggests the relative difficulty of assigning value to inputs and outputs in cultural industries. This difficulty leads toward often very entrepreneurial negotiations of the economic and cultural value of industry roles and functions. Contracts and cases that follow from those negotiations might not only reflect relations among already formed actors, but also crystallize particular moments in their continual formation.
This point lurches around themes developed much further elsewhere (right now I’m thinking of Sean Nixon and Jon Kraszewski). But entertainment law might be a good place for lurching around them. In defending his share of Nash Bridges profits, Johnson justified claims to ownership with provocative claims to authorship. As originator of the Millionaire format, Celador claimed an economic and cultural authority much more problematic than Disney’s accounting (Fox might've simply developed an unlicensed knockoff). Around the same time as Johnson and Celador, Lady Gaga’s and Ke$ha’s ex-managers came out (of the woodwork?) claiming breaches of contract that disrespected their participations in the stars’ careers (Maria Sanders and Matt Stahl have written fascinatingly on industrial authorship in pop-stardom). Meanwhile, Neil Gaiman and Todd McFarlane revisited claims and counterclaims to authorship and royalties in their collaborative work on Spawn (fans were very savvy to the cultural problems raised by the case). Besides skipping over Eric Dane’s claims to authorship and ownership, this short list only scratches the surface of The Hollywood Reporter’s Esq blog, and doesn’t even touch daily dealmaking reports across the trades (what’s an overall deal, and what’s it have to do with exclusive contracts for comics writers?). Across the domain of entertainment law, economic forms carry interesting cultural freight. Contracts and cases raise questions about struggles over those forms, but they give no final answer.
Terrific post, and it leaves
Terrific post, and it leaves me wanting to ask you all kinds of questions about different hypotheticals and how they relate to your ideas here. For example, copyright law recognizes the category of "work for hire" in which legal authorship is transferred away from the actual producer of the work to the person paying the bills, allowing for the construction of fictive authors like "Pixar" or "James Patterson." How does that category get parsed and re-parsed in entertainment law at this level of complexity?
It seems simpler in the legendary days of the music industry, when dubious claims to authorship were a formalized way for managers, promoters, and DJs to take extra slices of an artist's pie, hence the many records on which Alan Freed is listed as composer. Even within that system, however, there were tiers of creative authorship, stylistic authorship, promotional authorship, etc. For example, "I Want You Back" can claim among its authors the Jackson 5, Berry Gordy, "The Corporation" (Motown's songwriting collective), Diana Ross (who "presented" the Jackson 5), and "Motown" itself as a company, a musical style, and, heck, a place in Michigan. Each of these authors stood in different economic and contractual relations to the work itself.
This all leaves me wondering whether claims of authorship are driving contractual relations, or vice-versa, or whether it's even messier than that (Josh's post leads me to believe messiness is the order of the day). I'd like to think that our notions of authorship are becoming complicated enough that eventually it will collapse from multiple internal contusions (why won't The Author die already?). But I guess the author won't die as long as our policies and legal structures make it profitable to (plausibly claim to) be one.
tip of the iceberg
Thanks, Josh, for an introduction to an important area of inquiry that intimidates me as much as it begs attention. There is one sentence here that I keep reading, and re-reading, and I wonder if you could venture a few more words about it: "Cultural economics suggests the relative difficulty of assigning value to inputs and outputs in cultural industries."
Bill highlighted the question of authorship, but I'm curious about the relationship of authorship with actual labor. Contract law seems to focus less on the latter in its efforts to create the former. To what extent, therefore, are the "inputs" and "outputs" (plural) to which you refer completely separte and distinct from the media product itself?
Along these lines, I love that your clip spotlights only the credits--as if the object (the TV program) has little relevancy to this topic. Or perhaps it simply draw out attention to the fine print that underlies every object we study.
Thanks for a great post,
Thanks for a great post, Josh! I really appreciate how, if I'm reading it correctly, you suggest that contracts and contract law cases frequently instantiate, rather than merely adjudicate, industrial formations and relationships, with implications not merely for how wealth is distributed, but for how cultural labor and authorship is constituted, understood and valued. Much like Karen, contract law is way outside my wheelhouse, though your post persuasively demonstrates the need to consider negotiations and disputes as a crucial arena where economics, culture, and law intersect.
To build on Bill's question, he cases you mention delivered victories to Johnson and Celador; I'm curious about how and why people lose, and the parameters of "authorship" of "cultural authority" that the courts currently are willing to countenance.
Thanks for reading, and for uncovering some really interesting deeper layers to these questions!
Sorry for the clip. Karen, I appreciate your generous reading of clipping closing title cards, but at one point, at least, I'd imagined a mashup of Nash Bridges, Ke$ha, Medievel/Dark Ages Spawn, and so on (no Eric Dane and friends, though).
I think I have more patience for "authorship" than Bill, but cases like these really do suggest how far the concept gets stretched. I'm not sure which is the bigger breakdown in orthodox legal / economic concepts of authorship -- Dane's authorship in hitting the record button on the sex tape, or Gaiman's in writing a Valkyrie-figure into someone else's superhero universe. And I really like the "I Want You Back" example -- I wonder if things get especially messy in music (and comics, too?).
I’m paraphrasing badly, but I think Bill’s question of the variety of relations between authorship discourses and their institutional contexts is one of those central problems to keep pushing. I also think it’s an irredeemably empirical question; I might be a romantic, but I don’t think we can settle the question by saying things like “commodity authorship” or “copyright capitalism.” I don’t know what it means, and I don’t actually think it means very much, but I think it means something that Gaiman is donating his winnings from his Spawn work to the Comic Book Legal Defense Fund.
Still paraphrasing badly, I think that Karen and Allison are hitting another one of those central questions, in the problem of how / according to what parameters different claims to value circulate in different arenas. In the Johnson and Celador cases, the courts started by accepting the terms of the contracts, and the only thing at issue was the bookkeeping (not that that’s a trivial issue). Like in a lot of copyright cases, in the Gaiman-McFarlane cases, we do get a much closer look at more concrete questions of labor (e.g., is McFarlane’s Dark Ages Spawn a ripoff of Gaiman’s Medieval Spawn?). That said, some of the fan commentary on the case went much further in problematizing originality, collaboration, and so on. I don’t want to say that “the fans” are better than “the law” at asking questions of media and cultural studies -- there are plenty of cases and laws that show a lot of sensitivity to those questions. But maybe circling back to Bill’s post, there’s a lot to think to think about in the specificity and interrelationship of these different levels or arenas of regulation!
Josh, This is a really
This is a really interesting post, and I absolutely love the clip. Your construction of contracts and dealmaking as regulatory mechanisms is terrific....and an excellent complement to Bill's post in the way that you both are working to expand the framework of what exactly constitutes policy/regulation and argue for a more expansive vision of these realms.
I wonder if everyone writing this week has their own occasional JD fantasies. I know I do.
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