Tuesday, October 21, 2008
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C.A. Revives Claim That Fox Stole Idea for Dance ‘Reality’ Show
By KENNETH OFGANG, Staff Writer
Dancers who allege that the Fox network and Dick Clark Productions stole the concept for the television show “So You Think You Can Dance? can amend their complaint to allege that the defendants or their agents knew the idea was plaintiffs’ and thus had an implied contract to compensate them, the Court of Appeal for this district has ruled.
Div. Three Friday overturned the dismissal of the action by John Cassese and Brian Nelson.
Cassese, a veteran dance instructor, and Nelson, a competitive ballroom dancer, were among four plaintiffs who brought the action in June 2006. The other plaintiffs did not appeal the dismissal.
The complaint alleged that the concept of a television show, in which contestants recruited from around the country are paired with experienced partners and are judged with regard to their performances of dances in a variety of styles, was registered with the Writers Guild of America in 2003.
Allegations of Complaint
The plaintiffs further alleged that they retained agent Martin Erlichman to pitch the concept for the show, which debuted in July 2005, and that Fox falsely credited the concept to Dick Clark Productions and others and not to them. They also claimed that Erlichman, acting on their behalf, disclosed the concept to Creative Artists Agency and that this created an implied contract entitling them to credit and compensation, neither of which they received.
Erlichman’s agency is also a defendant in the case but did not join in the demurrer brought by the network and the producers.
Los Angeles Superior Court Judge Joanne O’Donnell sustained a demurrer without leave to amend, and the case was dismissed.
Justice Patti S. Kitching, in an unpublished opinion for the Court of Appeal, agreed with the defendants that the demurrer was properly sustained. The complaint was faulty, the justice explained, because their was no explicit allegation that the plaintiffs disclosed the concept to the defendants, or that CAA, to which the concept was allegedly disclosed, was acting as agent for the network or the producers, as opposed to the writers to whom Fox gave credit.
Besides, the justice wrote, there was no clear allegation that the defendants knew that the concept was being tendered on condition that the plaintiffs be credited and compensated.
Proof of Custom
Kitching rejected the argument that defendants are chargeable with knowledge that under industry custom, writers who have registered a concept with the guild are understood to disclose it only on condition that they be acknowledged and paid if the idea is used. While industry custom may be offered as evidence of the extent of defendants’ knowledge of the conditions on which the concept was tendered, the justice explained, “it is not in and of itself an ultimate fact.”
The jurist went on to say, however, that the plaintiffs should have been given a chance to amend the complaint. Based on arguments raised in connection with the demurrer, Kitching explained, it appears that the plaintiffs can allege that CAA was representing the defendants at all relevant times and that CAA’s acceptance of the concept and subsequent conduct demonstrates an understanding of the conditions on which the concept was disclosed.
Attorneys on appeal were Stuart B. Esner and Andrew N. Chang of Esner, Chang & Ellis for the plaintiffs and James A. Janowitz, Tom J. Ferber, Nia J.C. Castelly, and Karen M. Robson of Pryor Cashman LLP for the defendants.
The case is Cassese v. Fox Broadcasting Company, B197572.
Copyright 2008, Metropolitan News Company