Friday, October 13, 2006

Madness and credit

Clauson v. Eslinger, -- F.Supp.2d --, 2006 WL 2848118 (S.D.N.Y.)

Eslinger wrote the script for the film Madness and Genius when he was 13. He began pre-production in 2001; the completed film has garnered positive reviews. In the interim, after dismissing two producers from the project, Eslinger met Clouson at an NYU gym and asked if he wanted to help out with the film. The parties never discussed how plaintiff would be credited. Clouson performed a large number of complex administrative tasks in pre-production and production. Though on small budget films the role of producer and line producer are hard to distinguish, industry texts and guides indicate that “budgeting, fundraising, scheduling, crew assembly, location procural and other like tasks” of the sort Clouson performed are the line producer’s job.

Documents prepared by Clouson listed him as producer. “A contract between the two also listed plaintiff [Clouson] as producer of the film, although defendant contends that he was coerced into signing it.” Clauson, however, forged Eslinger’s signature on a Screen Actors Guild ("SAG") contract, indicating that Eslinger was the film's producer, which apparently makes Eslinger liable to SAG (and has negative effects on Clauson’s credibility).

Clouson’s involvement in post-production was less extensive than his earlier involvement, and the parties agreed that post-production work is fundamental to the producer’s job. After Clouson’s work on the film, he posted a resume on an industry website advertising himself as a line producer, but also referring to himself as a producer. When the film appeared in the Toronto Film Festival and in other submissions to film festivals, Clouson received no credit at all. Both parties have contacted the Internet Movie Database (IMDb), “a database used in the film industry to check resume accuracy,” and currently lists Clouson as line producer and coproducer and Eslinger as producer.

Clouson wanted an injunction against any use or performance of the film until he was listed as producer in the credits and all promotional material, and remedial measures requiring Eslinger to reach out to reviewers, etc., giving him credit, including taking out an ad in Variety for three weeks in a row.

The record evidence on the identity of the actual producer was mixed, so Clouson wasn’t likely to succeed on the merits and wasn’t entitled to injunctive relief.

Clouson’s contract claim, however, survived dismissal because he adequately alleged a contract between the parties requiring him to get credit as producer. In addition, the court refused to dismiss Clouson’s false advertising Lanham Act claim, because he alleged that the film’s credits and promotional materials “wrongly credit” Eslinger as producer. The court failed to discuss whether the misrepresentation could be material. There’s also a question of standing, though perhaps easily met if the parties compete in the market for producer services. But if Eslinger only produces his own movies, then we may be in a situation like that of the designer previously discussed, where a court found that a firm that only designs and licenses creative works doesn’t compete with a firm that uses those creative works to produce products – even though, for all we know, the firm does some of its own creative work in-house. In other words, in an industry where some firms are vertically integrated and some aren't, competition may be more difficult to determine.

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