Professional Representation

Readers over 40 will remember the TV series MacGyver, which ran on ABC from 1985 through 1992. The show starred Richard Dean Anderson as a mild-mannered secret agent with an uncanny ability to escape the gravest perils by repurposing ordinary objects around him.  The show was such a hit that “macgyver” entered the lexicon to refer to an ingenious solution to a problem.

The original series was packaged by Major Talent Agency (“MTA”), which represented Henry Winkler and John Rich. Winkler and Rich, through their loanout companies, sold the show to Paramount under a 1984 agreement (“1984 Agreement”), which contained a specific provision according MTA a package commission on any series produced under the agreement and on “any spin-off series therefrom.” Paramount TV was acquired by Viacom in 1994, and when Viacom spun off CBS in 2006, the rights to MacGyver went with it.  In this franchise-crazed era, a revival of the program was inevitable; the new MacGyver premiered on CBS in the fall of 2016 and is now in its third season.  Citing the 1984 Agreement, MTA’s successors demanded their package commission from CBS, claiming that the new MacGyver constitutes a “spin-off series.” When CBS declined to pay, litigation ensued.

The case is deceptively simple. It turns on the meaning of the word “spin-off” as used in the 1984 Agreement. CBS’ publicity for the current series refers to it as a “reboot” or “remake.” Although neither of these terms appears in the 1984 Agreement, MTA’s successors assert that “[a]t the time of the 1984 Agreement, the term ‘spinoff,’ unless further defined, was broadly understood in the industry to mean a television series that is based on, comes out of or otherwise derives from an earlier television series, including what are referred to today as, among other things, ‘reboots,’ ‘revivals,’ ‘remakes,’ ‘sequels,’ and ‘spin-offs.'”

Conversely, CBS will argue that “remake” and “spinoff” refer to different things. A spinoff takes characters or settings from one work as the starting point for a different work. In contrast, a remake uses principal characters from the original work to animate a work similar to the original. These distinctions were well-known in 1984. At that time, A Star Is Born had already been remade twice. As for spinoffs, look no further than Happy Days, the show that made Henry Winkler’s career.  That series was itself a spinoff from a segment of Love, American Style and in turn was spun off to Laverne & Shirley and Mork & Mindy. By these definitions, the new MacGyver show is more fairly characterized as a remake than as a spinoff.  Of course, if the parties to the 1984 Agreement had intended to pay commissions to MTA for remakes as well as spinoffs, they could have said so.

There are, however, plausible theories that MTA’s successors could use to explain this omission. In 1984, remakes may not have been novel but were largely confined to theatrical motion pictures. The craze to recycle old TV series is a much more recent phenomenon. Further, the distinguishing characteristic of a remake is inherently fuzzy when applied to TV. A remake, by definition, substantially replicates the plot of its original, but every episode of a TV series is a new story, which begs the question of what exactly it is that is being remade. Under this logic, any reversioning of a series can be theoretically characterized as a spinoff, even one that involves substantially the same characters and setting. Viewed in this light, it is understandable why the parties to the 1984 Agreement might have used “spinoff” to refer to any new version of a series.

Sometimes, seemingly simple questions of contract interpretation can illuminate transformations in the entertainment industry over time. Similar conflicts arose over whether streaming revenues should be deemed “home video” receipts for purposes of calculating backend participations. Unlike those cases, the MacGyver case does not implicate deep technological changes, but it does reflect a programming trend that was perhaps not foreseen in 1984.

 

 

Copyright: ratru / 123RF Stock Photo
Copyright: ratru / 123RF Stock Photo
Los Angeles City Attorney Mike Feuer filed criminal charges last month against five casting workshops, their owners and employees, alleging violations of the Krekorian Talent Scam Prevention Act. Under the Act, it is a crime to charge a performer money for the right to audition.

The workshops bill themselves as opportunities for performers to read in front of professional casting directors for the purpose of receiving notes and guidance on their auditioning skills. But Feuer expressed the City’s position in a press conference as follows: “As the entertainment capital of the world, Los Angeles continues to attract thousands of aspiring performers from across the world. Unfortunately, pay-to-play casting schemes often exploit their dreams, purely for profit. My office will continue to crack down on those who would take advantage of performers desperate for work.” The performer’s union SAG-AFTRA issued a statement strongly supporting Feuer’s action.

The charges followed a year-long investigation in which a professional actor working as an undercover informant attended 13 workshops conducted by the five defendant companies. Many of the defendants are well-known casting directors and associates who have worked on shows such as Santa Clarita Diet, Criminal Minds and The Big Bang Theory, among others.