Desny Hypothetical


This question has been modified from its original version. It has been formatted for class on March 26, 2018.

What follows is a revised version of one of the essay questions from a previous Entertainment Law final. We will provide you with the actual question from an "A" student answer at a later time. For now, please review the question carefully and be prepared to discuss the issues with our guest speaker on March 26th. Enjoy!

Unknown to most people, Lakewood Church Preacher Girl Victoria Osteen is an accomplished hog hunter. Vicky created a concept for a reality television series called Hogs & Hotties, using three physical, feminine and attractive women as lead talent. Vicky interviewed and selected Hillary and Huma, neither of whom had any hog‑hunting experience to be the co-stars. Vicky, Hillary and Huma (the “Three Amigas”) then created a production company called ROUSSEY, LLC, with Vicky as the majority/controlling owner. Vicky grants a limited license of her concept to ROUSSEY to further develop and produce the series and the Three Amigas sign a non-compete agreement with ROUSSEY. The Three Amigas begin filming hunts in Texas, which are paid for and produced by ROUSSEY. Video footage of Hogs & Hotties was then copied onto DVDs and a short commercial preview was used as a promotional tool and exhibited on the ROUSSEY website.  ROUSSEY then enters into a production agreement with a big-time producer, Fred Durst Enterprises (“DURST”), which has a business relationship with the COYOTE TV Network (“COYOTE TV”). Pursuant to this agreement with ROUSSEY, DURST pitches the Hogs & Hotties concept to networks, including COYOTE TV. Vicky lets DURST handle the pitch meetings and does not participate. By and by, COYOTE TV proposes a production agreement to DURST which includes compensation for the use of the Hogs & Hotties concept, and then requests Vicky to (a) assign all claims to the concept, (b) forgo all creative and executive producer credits and license fees, and (c) appear on Hogs & Hotties as lead talent only. Vicky has follow-up discussions with DURST and COYOTE TV wherein she claims that she told them that she expected compensation for the use of her concept in the form of a co‑production deal for ROUSSEY and a license agreement for profit sharing between COYOTE TV and Vicky. Subsequently, COYOTE TV responds to Vicky as follows:

“I have now been authorized to represent the interests of both DURST and COYOTE TV. Neither one will deal with you on the terms you propose. We might be interested in a payment to you in exchange for a complete release and acknowledgment that the show will proceed without Vicky. If this is of interest, let me know and I will recommend a ‘buy out’ payment in the amount of $5k. Otherwise, DURST and COYOTE TV will proceed to other things.” Vicky rejects the “buy out” and the parties part ways.

After the deal blows up, Huma and Hillary resign from ROUSSEY. DURST also terminates his production agreement with ROUSSEY. COYOTE TV then enters into a production agreement with an experienced production company, STALKER, Inc. Later, DURST signs an agreement with COYOTE TV to provide development services to COYOTE TV and STALKER for the production of a new series called Pigs & Cuties. Hillary and Huma sign talent agreements with STALKER to appear as lead talent on Pigs & CutiesPigs & Cuties would feature Huma and Hillary and a male actor, Carlos Danger, engaged in the sport of hog hunting in Florida, while maintaining feminine attributes. Six months later, COYOTE TV begins to broadcast the series Pigs & Cuties which becomes the number one series on cable television. Vicky files a lawsuit in Star County, Texas against COYOTE TV, DURST, Huma, and Hillary alleging breach of implied contract. The Defendants follow the playbook when any lawsuit is filed in South Texas and remove the case to federal court. The basis for removal is that Vicky’s lawsuit is actually a case under the federal copyright law over which the federal courts have exclusive jurisdiction. As to the substance of Vicky’s lawsuit the Defendants respond that Pigs & Cuties is an independent creation of STALKER and that the two series are different. COYOTE TV also denies any knowledge that Vicky was the creator of the concept or that she expected compensation for its use. The Defendants also say that there is no question that there are several reality series on TV based on the concept of people hunting wild animals and this is not a protectable concept. Vicky moves to remand the case back to the state court in Star County because the analytics show that she has a big following in South Texas and will probably get a favorable jury. The Defendants should be able to keep the case in federal court and win this lawsuit.

True or False?  Explain.