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.