Cameo Clips

FILM DISPUTE DAMAGES/SUBPOENA QUASHED

A magistrate for the U.S. District Court for the Southern District of New York granted a bank's motion to quash a subpoena, under Rule 45(c)(3) of the Federal Rules of Civil Procedure, that sought documents from the financial institution in the damages phase of a film-distribution suit over the movie Miss Conception (originally titled Buy Borrow Steal). Blue Angel Films Ltd. v. First Look Studios Inc., 08 Civ. 6469. In this case, film producers sued their distributor for funds owed. After obtaining favorable summary judgment on their breach of contract claim, the plaintiffs sought documents from Bank of America related to non-party Millennium Entertainment's acquisition of defendant First Look.

Federal Magistrate James C. Francis IV noted that the plaintiffs “seek the subpoenaed information in order to be able to collect their damages from Millennium if First Look fails to meet its obligations.” But Magistrate Francis emphasized: “Here, of course, the plaintiffs have yet to be granted a judgment. Second, the plaintiffs apparently intend to implead Millennium as a defendant and contend that the requested information would be relevant to claims against Millennium.” However, the magistrate concluded: “Since Millennium is not now a party to this action, information relevant only to potential claims against that entity is not discoverable.”

The U.S. District Court for the Middle District of Pennsylvania decided that an arbitration clause in a film financing agreement is enforceable, despite the plaintiffs' claim that defendants fraudulently induced execution of the agreement. Metcalf v. Merrill Lynch, Pierce, Fenner & Smith Inc., 11-cv-127. The dispute involved financing for the proposed movie Do You Know Where Your Parents Are?. District Judge John E. Jones III noted: “Plaintiffs have failed to raise a genuine issue of material fact suggesting that the arbitration clause was the subject of fraud, misrepresentation, or a disconnect between the parties in the formation of the Financing Agreement. Moreover, Plaintiffs fail to assert that Defendants made oral misrepresentations that specifically induced Plaintiffs to enter into the arbitration clause itself, as opposed to misrepresentations that caused them to enter into the Financing Agreement as a whole.”

The district judge added: “[B]y virtue of substantive federal law [i.e., the Federal Arbitration Act] the arbitration clause is severable from the rest of the agreement and any deficiencies contained therein, including an alleged lack of consideration. Additionally, the fact that the Financing Agreement does not include a survival clause is of little consequence because the arbitration clause is severable from the agreement as a whole and challenges against the Financing Agreement that do not specifically challenge the arbitration agreement will not serve to invalidate an unequivocal duty to arbitrate.”

The California Court of Appeal, Second District, decided that CBS Broadcasting's motion should be granted to strike a suit filed by a couple who claimed they were defamed in an early writers' draft and in casting synopses (that ended up on the Internet) for the TV show CSI: Crime Scene Investigation. Tamkin v. CBS Broadcasting Inc., B221057. Show writer Sarah Goldman, a co-defendant, had met plaintiffs Melinda and Scott Tamkin, who are real estate agents, when Goldman was seeking to buy a house. Goldman later used the name “Tamkin” in a preliminary draft stage for a CSI episode's “B” story about a troubled married couple who were also real estate agents. In the show that aired, the couple were renamed Tucker.

The California Court of Appeal ruled the Tamkins' defamation suit should be stricken under Calif. Code of Civ. Proc. '425.16, the state's “anti-SLAPP” law meant to eliminate suits filed to chill free speech rights. The court found that the defendants were engaged in protected activity because “there was a public interest in the writing, casting and broadcasting of CSI episode 913. Defendants also demonstrated a connection between the use of plaintiffs' names and the creative process underlying episode 913 ' plaintiffs' full names were used as placeholders for guest characters who would appear on the show. ' We find no requirement in the anti-SLAPP statute that the plaintiff's persona be a matter of public interest.”

The Court of Appeal went on to find that “no reasonable person who read the casting synopses and then saw the television broadcast would have understood the fictional characters portrayed in episode 913 to be plaintiffs.” For example, the court noted, “there is nothing about the physical description of the fictional Scott Tamkin, such as a special birthmark or a specific fashion accessory or hairstyle, which would allow a reasonable person to conclude that the fictional Scott Tamkin was in fact the real Scott Tamkin.”

FILM DISPUTE DAMAGES/SUBPOENA QUASHED

A magistrate for the U.S. District Court for the Southern District of New York granted a bank's motion to quash a subpoena, under Rule 45(c)(3) of the Federal Rules of Civil Procedure, that sought documents from the financial institution in the damages phase of a film-distribution suit over the movie Miss Conception (originally titled Buy Borrow Steal). Blue Angel Films Ltd. v. First Look Studios Inc., 08 Civ. 6469. In this case, film producers sued their distributor for funds owed. After obtaining favorable summary judgment on their breach of contract claim, the plaintiffs sought documents from Bank of America related to non-party Millennium Entertainment's acquisition of defendant First Look.

Federal Magistrate James C. Francis IV noted that the plaintiffs “seek the subpoenaed information in order to be able to collect their damages from Millennium if First Look fails to meet its obligations.” But Magistrate Francis emphasized: “Here, of course, the plaintiffs have yet to be granted a judgment. Second, the plaintiffs apparently intend to implead Millennium as a defendant and contend that the requested information would be relevant to claims against Millennium.” However, the magistrate concluded: “Since Millennium is not now a party to this action, information relevant only to potential claims against that entity is not discoverable.”

The U.S. District Court for the Middle District of Pennsylvania decided that an arbitration clause in a film financing agreement is enforceable, despite the plaintiffs' claim that defendants fraudulently induced execution of the agreement. Metcalf v. Merrill Lynch, Pierce, Fenner & Smith Inc., 11-cv-127. The dispute involved financing for the proposed movie Do You Know Where Your Parents Are?. District Judge John E. Jones III noted: “Plaintiffs have failed to raise a genuine issue of material fact suggesting that the arbitration clause was the subject of fraud, misrepresentation, or a disconnect between the parties in the formation of the Financing Agreement. Moreover, Plaintiffs fail to assert that Defendants made oral misrepresentations that specifically induced Plaintiffs to enter into the arbitration clause itself, as opposed to misrepresentations that caused them to enter into the Financing Agreement as a whole.”

The district judge added: “[B]y virtue of substantive federal law [i.e., the Federal Arbitration Act] the arbitration clause is severable from the rest of the agreement and any deficiencies contained therein, including an alleged lack of consideration. Additionally, the fact that the Financing Agreement does not include a survival clause is of little consequence because the arbitration clause is severable from the agreement as a whole and challenges against the Financing Agreement that do not specifically challenge the arbitration agreement will not serve to invalidate an unequivocal duty to arbitrate.”

The California Court of Appeal, Second District, decided that CBS Broadcasting's motion should be granted to strike a suit filed by a couple who claimed they were defamed in an early writers' draft and in casting synopses (that ended up on the Internet) for the TV show CSI: Crime Scene Investigation. Tamkin v. CBS Broadcasting Inc., B221057. Show writer Sarah Goldman, a co-defendant, had met plaintiffs Melinda and Scott Tamkin, who are real estate agents, when Goldman was seeking to buy a house. Goldman later used the name “Tamkin” in a preliminary draft stage for a CSI episode's “B” story about a troubled married couple who were also real estate agents. In the show that aired, the couple were renamed Tucker.

The California Court of Appeal ruled the Tamkins' defamation suit should be stricken under Calif. Code of Civ. Proc. '425.16, the state's “anti-SLAPP” law meant to eliminate suits filed to chill free speech rights. The court found that the defendants were engaged in protected activity because “there was a public interest in the writing, casting and broadcasting of CSI episode 913. Defendants also demonstrated a connection between the use of plaintiffs' names and the creative process underlying episode 913 ' plaintiffs' full names were used as placeholders for guest characters who would appear on the show. ' We find no requirement in the anti-SLAPP statute that the plaintiff's persona be a matter of public interest.”

The Court of Appeal went on to find that “no reasonable person who read the casting synopses and then saw the television broadcast would have understood the fictional characters portrayed in episode 913 to be plaintiffs.” For example, the court noted, “there is nothing about the physical description of the fictional Scott Tamkin, such as a special birthmark or a specific fashion accessory or hairstyle, which would allow a reasonable person to conclude that the fictional Scott Tamkin was in fact the real Scott Tamkin.”