TLC sues Jon Gosselin for breach of morals clause, exclusivity

By Eriq Gardner

Jon Gosselin is being sued for failing to meet the obligations of his contract.

Discovery Talent Services, which secures the services of individuals who appear on Discovery shows like TLC, has filed its lawsuit in Maryland Circuit Court.

According to the complaint, Gosselin signed a new deal in 2008 for "Jon & Kate Plus 8" that provided his services and his family's services in taping and promoting the program exclusively. The deal promised he wouldn't do anything inappropriate that offended "social conventions or public morals or decency" or bring TLC into "public disrepute, contempt, scandal or ridicule." It also obligated him to maintain confidentiality of business or operational information concerning the show, and stipulated he would not endorse products or services competitive to the program.

Pretty standard stuff. But according to the complaint, Jon hasn't lived up to his end of the bargain.

The plaintiff cites various breaches of this contract, including photographs and stories of Gosselin intoxicated and in the company of women other than his wife, Gosselin selling his services to other media outlets including a "lucrative arrangement" to appear on "Entertainment Tonight," and Gosselin issuing his own press releases about the show.

On September 29, TLC announced the show would be changed to "Kate Plus 8," but that Jon would continue to appear on the program. Later that day, Gosselin's attorney allegedly requested his client's release from the exclusivity of the contract. TLC declined, and Gosselin sent the network a cease-and-desist letter barring filming of family property.

The plaintiff alleges breach of contract and looks for compensatory damages and disgorgement of money he received as a result of breaches.

Jeremy Piven 'Speed the Plow' arbitrator decision revealed

By Eriq Gardner

When we first heard about an arbitrator's decision in August to let Jeremy Piven off the hook for bowing out of the play "Speed the Plow" due to health-related reasons, we assumed the arbitrator had probably grounded his ruling on a very technical analysis of contract law in the theater world.

But it seems the arbitrator felt bad for Piven after the producers' lawyers described him as little more than a party animal who concocted a weak excuse that eating sushi led to mercury poisoning, leaving him too fatigued to perform.

The NY Times published today the arbitrator's confidential 44-page ruling that details the full back-stage drama, both sides' arguments, and the arbitrator's analysis.

Besides the differing medical opinions on Piven's conditions, what stands out is the arbitrator's rebuff of producer attempts "to paint Piven as a fun-seeking night owl; attending (Britney) Spear's (sic) party, playing the drums at a comedy club and attending events he need not have attended if his health was such a concern."

The arbitrator, George Nicolau, adds that "a closer look shows something quite different" and generously allows that actors, like everyone, need time to unwind.

Nicolau doesn't think that Piven was any less attentive to his theatrical duties than the typical actor, which could help Piven's stated desire to work on Broadway again. But judging by the Public Theater's staging of "The Piven Monologues," broadway producers aren't ready to be quite as generous to Piven as this arbitrator.

Will insurance cover Roman Polanski's unfinished movie?

By Eriq Gardner

At the time of his arrest, Roman Polanski was working on "The Ghost," a political thriller about a ghostwriter (Ewan McGregor) hired to write the memoirs of a recently unseated British prime minister (Pierce Brosnan). The film is based on a Robert Harris novel, which opens with the death of the first ghostwriter.

As Polanski finds himself in his own political intrigue — will he be extradited to the United States or will the French hold sway over the Swiss? — we now turn our attention to what might happen to "The Ghost."

Polanski's film is in limbo, with post-production work including music scoring and sound mixing not yet completed. Whether a ghost director will finish Polanski's work is worth enough ironic intrigue to give Robert Harris a sequel.

Film productions typically have essential element or "key man" insurance, compensating a business for the loss of a principal such as a leading actor or a star director. Would it cover Polanski's arrest? Would anybody going into business with Polanski factor in the risk of arrest and extradition?

After surveying a few industry attorneys, we found some disagreements here. Some believe that essential element insurance covers arrests. Others don't believe that's the case.

"The Ghost" doesn't yet have a U.S. distributor but it has distribution in many territories, including German and Polanski's home country of France. Summit Entertainment, a producer of the film, also likely secured a completion bond on the film. Regardless of whether "key man" insurance applies, the bond would guarantee the film being completed, perhaps with a replacement director. 

But what happens if a distributor insists on a Roman Polanski film?

"Usually a distributor isn't paying full price until the film is delivered to them," says Sue Bodine, special counsel at Cowan DeBaets Abrahams & Sheppard. "They don't have to accept a film not directed by Polanski. This would conceivably give them an out on the deal, maybe if the distributor is in bad financial health or doesn't like the movie."

That's not the only hang-up.

"I assume Roman has final cut and is pay-and-play," says Matt Galsor at Greenberg Glusker, adding that if Polanski's contract with Summit is vague, there could be a legal dispute over whether Polanski's final cut is unconditional or whether "force majeure" would allow someone else to take over. Galsor says Polanski's legal history makes his contract with Summit an interesting issue.

In other words, Summit could give Polanski's movie to someone else, but it would potentially be courting a lawsuit from distributors or from Polanski himself. And if there's confusion about whether "key man" insurance applies to the situation, Summit will have to proceed very carefully. We might not see "The Ghost" in theaters for a while.

Jan de Bont sues for $1.25 million over pay-or-play snub

By Eriq Gardner

"Pay-or-play" contracts encourage big names to sign onto a project with the incentive that the talent will be paid regardless of whether the project actually happens.

Some producers are willing to take that kind of gamble to attract top-notch talent, but are they willing to stick by the provision should something go wrong?

Director Jan de Bont ("Speed," "Twister," "The Haunting") has filed a breach of contract lawsuit against producers of a film called "Stopping Power" for allegedly not living up to this kind of deal. John Cusack filed a similar claim against the movie's producers last year.

According to the latest lawsuit, producer Intermedia Film Equities USA agreed to pay plaintiff Blue Tip International, which furnished De Bont's services, $1.5 million as an advance against "domestic participation," $250,000 upon DeBont's engagement, $50,000 in the last two weeks prior to production, $900,000 during principal photography, and $150,000 upon delivery of the film. But just days after principal photography commenced, the film was shut down and never made.

Blue Tip says it's owed about $1.25 million in remaining money due under the "pay or play" provision. Here's the complaint.

Judge: Clear Channel can fire DJ for explicit on-air comments

By Eriq Gardner

A federal judge in New York has dismissed a lawsuit brought by shock jock DJ Star against Clear Channel for violating an employment agreement by terminating him for racy on-air comments.

DJ Star, whose real name is Troi Torain, sued the entertainment conglom after he was fired from the Power 105 radio station in 2006 for suggesting he wanted to sexually abuse the young daughter of a rival DJ on a competing station. The comment drew strong reaction, including from a New York city councilman who called the shock jock a "sick racist pedophile" (Star later sued him for defamation) and the FCC, which investigated the matter.

The employment agreement ran to March, 2007, but Clear Channel insisted it had proper cause under the contract to terminate DJ Star's services early for "utter(ing) obscene, indecent or profane program content" and for making an act that threatened recourse from the FCC.

DJ Star argued he was hired with an understanding that he'd push the boundaries and that his comments weren't unusual. But in his decision, Judge Peter Leisure says it was Star's responsibility to ensure his contract had broader protections and that the employment agreement "unambiguously provide(s) Clear Channel with the authority to terminate Torain."

Paris Hilton's 'Best Judge Forever' lets her off the hook

By Eriq Gardner

A Florida judge has ruled that Paris Hilton does not have to pay $8.3 million for avoiding promotion of the box office flop "National Lampoon's Pledge This!"

In the case, Judge Federico Moreno went to painstaking lengths to measure how Paris Hilton spends her day and whether she could have done more to provide "reasonable promotion and publicity services" for the film.

"Much time was spent on Paris Hilton's busy schedule, including how long it takes for Paris Hilton to do her hair (over 3 hours), whether she could promote 'Pledge This!' while visiting Japan and Austria to promote other products, or whether she should have spent Christmas with her family in Hawaii instead of promoting the movie," writes Judge Moreno in the opinion.

But the judge says the plaintiff— a court-appointed receiver assigned to collect debts from the 2006 stinker — didn't offer compelling evidence that Hilton's alleged contractual breaches caused "foreseeable damages," nor "could point to no actual contractual provision, and could proffer no specific testimony from anyone who actually decided to invest in the movie, that Ms. Hilton's prospective promotion of the DVD release, in particular, induced their investment."

Hilton isn't totally off the hook on this yet, however. 

Judge Moreno says he hasn't decided yet whether to make Hilton give back her $1 million payment for the film and may have another oral hearing on that subject. Perhaps Moreno is using this as an excuse to again see Hilton, who famously declared he was her "best judge forever" during the trial.

Inside the Octomom reality show contract

By Eriq Gardner

Last week, "Octo-Mom" Nadya Suleman signed a deal with Eyeworks, a British production company, to begin work on a TV show that will feature her 14 children. Because the children are minors, the parties took the contract on Friday to the Los Angeles Superior Court for approval.

The papers reveal that the kids will collectively earn nearly $250,000 over the next three years, including $125,000 for 36 days of shooting in the first year, $75,000 for 21 days of shooting in the second year, and $50,000 for 14 days of shooting in the third year. Of course, the money will be split among the 14 children, which adds up to less than $18,000 per kid or about $250 per kid per day of shooting. 

SAG doesn't hold jurisdiction on reality performers, but for perspective, the union scale minimum was reportedly set at $800 per day in its last deal with AMPTP. 

Suleman's contract for her kids is raising the eyebrows of some child performer monitors. One group is asking the Superior Court to appoint a guardian to oversee the financial interests of Suleman's 14 children.

This isn't only a question of money. Reality shows like "Jon & Kate Plus 8" that feature children have been investigated by authorities to see whether working conditions violate child labor laws. 

Plus, reality TV contracts have been known to be incredibly generous towards producers. For example, the contract signed by the women in "Real Housewives of New Jersey" gave producers among many other jaw-dropping clauses the right to film the ladies in everything except bathing, urination/defecation, and sex and gave producers 10 percent of income of "any and all gross income...unrelated to the Series" the women earned up to four years after the last episode of the series.

Hopefully, the judge will make sure that Suleman's children made out better.

Bizarre Universal Music lawsuit: Who is scamming who?

By Eriq Gardner

Some musicians are so hungry to get their albums distributed that they will do almost anything, including pay those who promise to make it happen. Desperation breeds scam.

Today's big question: Who is scamming the good musicians of Tennessee?

On Wednesday, Universal Music Group filed a lawsuit against a Nashville individual named Robert Metzgar (right). In the complaint, UMG alleges that Metzgar has been signing up artists to a record label called Platinum Plus Universal Records that falsely advertises an association with UMG. The lawsuit claims that Metzgar has been misrepresenting himself to artists, many of whom have stormed into UMG's Nashville office claiming to be owed as much as $100,000.

UMG also points to several websites maintained by Metzgar, including CapitolManagement.com, which have posted messages such as, "Get ready to spend some money if you want to capture the attention of a manager, record label, or entertainment law firm. Being a star is not cheap!"

We contacted Metzgar, who tells a very different tale: He says he's the victim of extortion and blackmail on the part of a top executive at UMG.

Metzgar says he's a musician in a band called the Smokey River Boys that's signed to Platinum Plus Records, a division of Universal. (He sent us the band's distribution agreement with Universal although we haven't yet been able to confirm its veracity.) Metzgar claims the division was started by Bob Zipkin, claimed to be the senior vp of UMG's special products division.

In 2003, Metzgar says Zipkin began to demand money, song-writing credits and a share of the band's revenue. "I paid because he told me to," he says. "I never questioned it because I was so happy to have my albums out there."

Metzgar says that he had a heart attack and had six bypass surgeries that year. Later, he was diagnosed with terminal cancer and, because of the rising health bills, he had to stop payment to Zipkin. That's when Zipkin "got furious," he says, pulling the band's album from Walmart and promising to hurt him.

Metzgar says he has a separate label but has never used Universal's trademark nor advertised affiliation for the purpose of signing musicians. (You be the judge.) He claims to have not seen the latest lawsuit, but dismisses the charges as baseless. He believes that other musicians signed to Universal's Platinum Plus Records have similarly been forced to pay money to Universal's Zipkin

Is Metzgar a world-class story teller or has someone else been pulling his chain? So far, we haven't been able to get UMG's reaction to Metzgar's claims or confirm the existence of Bob Zipkin, but we'll post an update soon. 

Paris Hilton declares Hon. Federico Moreno 'my best judge forever'

By Eriq Gardner

Trial is under way in a case that asks us to believe that Paris Hilton is not good at self-promotion. She's being sued for more than $8 million* because she allegedly failed to provide "reasonable promotion and publicity services" for the film "National Lampoon's Pledge This!"

Here's our favorite bit so far from the AP's recounting of this high-stakes legal drama:

The trial is being heard by Chief U.S. District Judge Federico Moreno, who reacted with surprise when Hilton gave him a little wave before testifying. "I've never had a witness wave at me before," the judge cracked.

In another exchange, Moreno was puzzled by the title of Hilton's current reality show, "My New BFF."

"What does that mean?" he said. After Hilton gave the title - "Paris Hilton's My New Best Friend Forever" - the judge remarked, "This will be my best case forever."

Without missing a beat, Hilton replied "You're my best judge forever."

Of course, there's tape of Hilton entering the courthouse too. She's wearing a spiffy black-and-white ensemble that certainly accessorizes the entourage of trailing lawyers quite well.   

*Correction: The original post incorrectly asserted that the plaintiff was seeking damages in excess of $75,000. In fact, the plaintiffs are looking to recover more than $8 million from Ms. Hilton.

How bad is the deal landscape? Entertainment lawyers sound off

By Eriq Gardner

Entertainment lawyer Gordon Firemark pointed on his blog yesterday a chilling memo from James Jones of Premiere Talent that has been circulating through Hollywood. 

This won't come as a shocker to anyone in the business, but the memo paints a dire portrait of an industry in turmoil as studios and networks cut back budgets. Firemark comments, "Sadly, this situation 'trickles down' to all entertainment industry workers, including writers, directors, crew, and even professionals like accountants, lawyers and the like."

Yes, theatrical boxoffice receipts are close to 12 percent ahead of last year's numbers, according to Box Office Mojo.But this doesn't tell the whole story.

In our conversations with industry lawyers, the number one topic of conversation is increasingly the woeful state of the industry. 

Hollywood's biggest stars are being forced into deals that would have seemed outlandish a few years earlier. Here are some choice quotes from some of the top talent lawyers we've interviewed for our upcoming Power Lawyers issue:

• "The financial structure of the TV and film industry is changing, and the pressures go well beyond just fee structures in contracts. We're also talking about conditions of employment, including trailers, travel, and photos. Just about everything is being cut back, especially the perks. Different clients react very differently to this news. It's becoming very hard for dealmakers."
• "Wow, I feel lucky just to have survived the last year. This is as challenging an economic environment as I've ever seen. I have to say I find what's been going on to be rather inexplicable."
• "Studios are getting more conservative on everything. The whole business is getting crunched. I think that everybody is challenged to be more creative in dealmaking because quotes really don't mean much these days."
• "I'm hoping with resolution with all of the guild issues, there will be some more stability in the marketplace and we'll see more stuff in production. Life will be pretty difficult otherwise."
• "What I'm seeing is more separation between the A++ clients and everyone else. Even for star clients who work in the feature market, there's just less work. Plus, a lot of movies being made today are animated and the compensation for that is nothing like what they would get on a live action picture."
• "As studios cut back on their production budget, it encourages talent to think of alternative ways to get into the distribution game and monetize their work. In some ways, studios are fostering competition for themselves and absolutely shooting themselves in the foot."