BY:Neil J. Rosini, Michael I. Rudell
(Originally published in the Entertainment Law column in the New York Law Journal on Friday, August 26, 2011)
Television spinoffs that are spawned from highly successful parent series can bring substantial financial rewards – including continued employment — to those who helped create the originals. Whether or not those rewards will be realized, however, depends substantially on the language of the claimant’s contract that sets out conditions to be satisfied.
Donald Bellisario was creator and executive producer of JAG, NCIS, and other television series including Magnum P.I., Airwolf, and Quantum Leap. A recent lawsuit[i] in Los Angeles brought against CBS by him and his personal services company illustrates how satisfying those conditions might prove elusive. Still, in a Superior Court decision earlier this month, the plaintiffs overcame a demurrer by the defendant on the strength of their allegations that the meaning of the word “character” — which would determine their right to compensation — can mean the entire “look and feel” of a television series rather than a mere fictitious person portrayed by an actor.[ii]
Bellisario’s action pertains to the popular television series NCIS: Los Angeles (“NCIS:LA“) which carries forward the NCISfranchise that in turn was derived from the JAG series. Bellisario’s contracts afford him a “first opportunity” to participate in the production of JAG and NCIS spinoffs or — in the alternative — to receive passive payments. CBS declared in demurrer that Bellisario received “a large fortune” in contingent compensation due to the success of JAG and NCIS. It is undisputed, however, he was given no opportunity to participate creatively in the production of NCIS:LA and receives no compensation from this series, which has enormous financial potential. The complaint notes that CBS sold cable syndication rights to the USA Network at the reported price of $2.35 million per episode and that NCIS:LA is the second-highest-rated scripted program on network television, surpassed only by NCIS.
This article examines the set of contractual conditions on which Bellisario’s suit depends as well as the unusual way he has fashioned his pleading in order to satisfy some of those conditions.[iii]
The Contractual Conditions
Bellisario bases his claims on three “term deal” contracts with CBS’s predecessor in interest, Paramount Television. During the time Bellisario created JAG, he was subject to a 1992 term deal; and during the time NCIS was created, he worked under a 2002 term deal. He entered into a third term deal in 2006 that related to his continuing involvement in NCIS, but he was removed from his duties and replaced in 2007 before the three-year term of that deal expired. The complaint alleges that these agreements gave him “first opportunity rights” to become involved as writer, writer supervisor, and/or executive producer, depending on the deal, on the NCIS:LA series, or in the alternative, to receive certain “passive payments” without furnishing services.
Each of these contracts, with some variations among them, lists several conditions for Bellisario to satisfy before he would become eligible to benefit from a new spinoff by way of first opportunity rights or passive payments, such as those that follow.
Several conditions relate to the nature of the spinoff and the timing of its production:
The length of time the claimant performed services on the underlying series holds significance as well as the credit he received:
Further conditions apply to the time at which the claimant would attempt to invoke his rights:
In their complaint, the plaintiffs acknowledge that “it is not unambiguously clear which of the various contracts apply to this dispute.”
The Meaning of “Character”
Apparently, Bellisario could not satisfy the first condition cited above by simply citing a fictional character portrayed by an actor in NCIS:LA that was carried over from either the JAG series or the NCIS pilot. Accordingly, Bellisario’s complaint takes a different tack: to argue that the meaning of “character” goes beyond the mere portrayal of a fictional person.
The complaint alleges that Bellisario created, wrote, developed and executive produced the JAG series from 1995-2005 and that in 2003, CBS announced it was developing NCIS as a JAG spinoff. Two JAG episodes functioned as the pilot for NCIS as several new characters first introduced in those episodes later returned as characters on NCIS when it was premiered. Bellisario created, wrote, developed and executive produced NCIS from 2003 to 2007. NCIS:LA, the “most recent offspring” of JAG/NCIS, was launched in 2009 (after Bellisario had departed) by two episodes of NCIS entitled “Legend,” which introduced several characters that would form the cast of the new series, NCIS:LA. With this as background, the complaint alleges that NCIS:LA is the second spinoff of JAG and the first spinoff of NCIS. [iv]
Bellisario alleges that he created the fictional universe in JAG and NCIS that was carried forward in NCIS: LA: an “underlying theme that the men and women who serve in the United States military uphold the values of honor, commitment and dedication to country” and a “unique mix of high-tension drama, humorous dialogue and banter among a tight-knit, family-like ‘team’ of recurring characters” — a mix that contributes to a “unique ‘look and feel'”. Bellisario takes full credit for this “recipe” that accounts for the success of NCIS: LA, which he characterizes as part of the same “franchise” or “brand.”
The complaint acknowledges that “[h]istorically, the most common model for a ‘spinoff’ involves a successful television show (the underlying series) with a popular character who becomes the lead in a new series” thereby leveraging the underlying series to create another. The plaintiffs allege, however, that with evolution of the television industry, the concept of a spinoff “has extended beyond” this model. Now, according to the complaint, “[p]laces, organizations, titles, or the overall ‘look and feel’ of a show, for example, may be so distinctive as to function individually or in combination as a central ‘character’ that is of equal or greater importance to the show’s success as any fictional person depicted in the show.” The complaint states that this “usage of the term ‘character’ to encompass distinctive features of a television series or franchise” has become “prevalent in the television industry” and “comports with the historic meaning of the word ‘character’ as a distinctive mark or brand, or the aggregate of the distinctive features of any thing.” For support, the complaint cites Leslie Moonves, Chairman and CEO of CBS, who referred to the Australian Outback setting for the reality program Survivor: the Australian Outback as “a character in itself.”
Although the complaint does not identify any fictional character in NCIS:LA that was carried over from either the JAG series or the NCIS pilot, it does allege that the NCIS Director — who appeared in the first episode of NCIS:LA — appears on both NCISand NCIS: LA. Among other common “characters” featured in NCIS, JAG, and NCIS:LA, the complaint points to the recurring title “NCIS,” the creative depiction of the military justice system and the NCIS agency, the “look and feel,” and a common perspective within the military criminal justice system.
Also, according to the complaint, NCIS:LA includes an agent-in-charge of the core team with character traits that resemble those of NCIS characters, a similar tone with humor “and the emphasis on the family-like team of investigators,” as in NCIS, and lead characters that engage in “running, humorous and familial banter” like those in NCIS all within a “shared military justice universe” common to all three series. Other “signature elements” of JAG/NCIS in style and content are alleged also to appear inNCIS:LA.
As examples of other spinoff franchises that did not carry over a common fictional person from one series to the next, the complaint cites the Law & Order and CSI brands with their common “look and feel,” unified perspective and shared story-telling formulas.
CBS responded to the suit with a demurrer seeking dismissal of all of Bellisario’s claims citing provisions of Bellisario’s contracts. CBS’s defenses included: the 1992 term deal, which related to the JAG series, did not give Bellisario rights in a spinoff of a spinoff from JAG (i.e., in a spinoff from NCIS) notwithstanding Bellisario’s claim that NCIS:LA was a spinoff of both JAG andNCIS; Bellisario was not rendering executive producer services on JAG at the required time; Bellisario did not satisfy the “sole credit” prerequisites under the contracts; and further, a contractual time limitation period in the second term deal had run before the action was brought even if all the conditions were satisfied. CBS also argued that Bellisario went to “absurd lengths” to “define ‘character’ as something other than a fictional person.”
A demurrer under California law is addressed to the sufficiency of a plaintiff’s pleadings. Citing the rule that “a demurrer must be overruled if the complaint states any valid cause of action and sets forth the essential facts,” the Court overruled CBS’s demurrer to the cause of action based on the 1992 term deal, which depended, in large measure on the plaintiffs’ definition of “character” and the related meaning of “spinoff.” The Court held that through reference to extrinsic evidence – specifically “allegations of industry custom and usage” — the plaintiffs “highlighted a latent ambiguity” in the definitions of “spinoff” and “character” in the 1992 agreement and “sufficiently pled alternative definitions of the terms.” (The Court also sustained CBS’s demurrer to the second cause of action that was based on the 2002 term deal, citing the shortened contractual limitation period for bringing an action; and the Court overruled CBS’s demurrer to the third cause of action as it applies to the definition of sole “written by” credit for the same reasons applicable to the first cause of action. A demurrer to the fourth cause of action for declaratory relief was sustained on the basis that it was “unnecessary and superfluous.”) The plaintiffs have moved for reconsideration.
Controversies regarding what constitutes a spinoff do not often find their way to court and the high stakes involved, coupled with Bellisario’s interpretation of the word “character” that survived its first test, make this case worth following.
[i] Donald P. Bellisario and Belisarius Productions, Inc. v. CBS Studios, Inc., California Superior Court, Los Angeles, Central District, Case No. BC 460417.
[ii] Order Overruling Defendant’s Demurrer in Part to Plaintiff’s Complaint, Hon. Gregory Alarcon, filed August 2, 2011.
[iii] The demurrer sought dismissal of claims seeking compensation for NCIS:LA on other grounds than the definitions of “character” and “spinoff,” which are not the focus of this article.
[iv] We will not focus here, either, on the plaintiffs’ further argument that NCIS:LA also is a sequel of JAG and NCIS, as opposed to a spinoff.