Trump for President? The Equal Time Rule and Reality TV

Ever since the calendar flipped into 2011, we the people have been flooded with half-headlines about Republican candidates-in-waiting who may or may not be running for president in 2012. And now that Barack Obama has (surprise!) announced his intention to run for re-election, people are more interested than ever to learn who might be opposing him.

Because no one necessarily wants to be the first out of the gate — and therefore, perhaps, the first subject to stringent regulations governing candidates for federal office — the statements have been comically non-committal, if not borderline impossible to parse. Last month, Newt Gingrich declared that he was “excited about exploring whether there is sufficient support for my potential candidacy for president of this exceptional country.” (Super.) A couple weeks ago Tim Pawlenty boldly declared on Piers Morgan Tonight, “I’m running for president!” — after which his spokesman announced that no decision had been made, and that Pawlenty’s people had “expressed our displeasure” with CNN for “report[ing] the full quote out of context.” (Thanks for clearing that up.) Obviously, we can assume that any presidential announcement is “not intended to be a factual statement.”

But no one has played the game of am-I-or-aren’t-I-running better than Donald Trump, whose presidential ambitions have been the subject of rampant speculation since last fall. Trump has made many comments about his potential Presidential bid, and has even been endorsed by Gary Busey (umm…good for him?). Last Friday, Trump’s spokesman made the following announcement:

On the May 22 season finale of Celebrity Apprentice, Mr. Trump may announce the time and place of a press conference at which time he will make a statement as to whether or not he will run for president of the United States.

In other words, on April 15, Trump announced that, on May 22, he may announce the future time and date at which he may announce that he’s running for president (in an election that’s taking place 19 months from now). It was an announcement of a potential announcement about another announcement. I’m not certain, but this may have ripped a hole in the space-time-logic continuum.

But this is an entertainment law blog, not a political blog. So I won’t use this blog post to poke fun at Donald Trump Republicans our political system (Jon Stewart and Stephen Colbert do suchgood job already). Instead I’m going to talk about how The Donald’s candidacy would affect his hit reality TV show, The [optional: Celebrity] Apprentice. (The same issue would have arisen with Sarah Palin’s Alaska had that show not been — *emo tear* —canceled after its first season in January. And people say Americans have no taste in television.) Continue reading the full story . . . »

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A Lesson in What Not to Do When Selling Your Company to Yourself

Ever since Michelle Obama wore J.Crew on The Tonight Show with Jay Leno, the company’s sales have skyrocketed. Under the leadership of my personal style hero Jenna Lyons (who is currently at the center of a ridiculous controversy over painting her son’s toenails…side note: I heart Jon Stewart), J.Crew sales went up 14%, even during the economic downturn. I can neither confirm nor deny reports that my personal purchases from J.Crew accounted for 13.9% of that increase.

So what did Micky Drexler, CEO of J.Crew, decide to do with these booming sales? Sell, of course! Only, some shareholders accused him of selling at below market value (a mere $3 billion). AND he sold it to J.Crew’s own former parent company. AND he waited 7 weeks to tell the Board of Directors about the deal. AND he said he would not work for anyone besides the buyers with whom he negotiated the deal (TPG Capital and Leonard Green & Partners). Whoops.

Not surprisingly, lawsuits ensued.

Shortly after the announcement of the J.Crew sale to TPG Capital and Leonard Green & Partners, shareholders filed a lawsuit against J.Crew, its Board of Directors, and TPG for breaching their fiduciary duties. The parties eventually settled for $10 million, netting each shareholder 15 cents per share, and each lawyer about $500 per hour (who exactly “won” this lawsuit again?). But the fight is far from over, as the plaintiffs’ lawyers now accuse J.Crew of violating the settlement agreement. And, even though corporate governance advisory firm Institutional Shareholder Services advised J.Crew’s shareholders to vote against the sale, the shareholders nevertheless approved the $3 billion buyout last month.

Although Mickey Drexler has publicly said he would conduct the sale the exact same way (I’m sure), the whole situation is basically a lesson on what not to do in a management-led buyout. Continue reading the full story . . . »

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Q&A: So…What Exactly Is “Pay or Play?”

Q: I’ll keep this brief to avoid boring you to death. From my understanding, a pay or play agreement means an actor will attach themselves to the project, but if the film never makes it to production, at least the actor will still get paid. So basically, it’s an arrangement that will permit an entertainment professional to attach their client to a project with confidence by assuring the actor that at least they will get paid.

A: Avoiding boring you to death has never been this blog’s goal. Yet, it effortlessly fails to achieve it on a consistent basis, week in and week out. Setting goals in life is a mammoth mistake and a recipe for failure. The only way to achieve all your goals is to have none. This blog had no goal, direction, or purpose of any kind. But look at us now — we’re bigger than U.S. Steel and Huffington Post. This blog is so tremendously influential now that every word I type sends trepidations down my spine, up my brain, and sideways to other places. None of it was planned, deserved, or earned. How can something so lackluster, mediocre, and banal be so successful? You can ask the same rhetorical question about your boss or Jay Leno. C’est la vie. Continue reading the full story . . . »

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Coming Soon to a Theatre Near You: The Social Network II

Monday brought two interesting developments in the never-ending saga of people trying to pry shares of Facebook from Mark Zuckerberg. First, the lawsuit that spawned the uber-successful film The Social Network — and a damn fine blog post about the same— seemingly came to an end. (I assume Zuck clicked “Like” next to the story.) And second, the lawsuit that will inevitably spawn The Social Network IIsuddenly got a lot more interesting. (And maybe now Facebook will take those long-standing calls for a “Dislike” button more seriously.)

“At Some Point, Litigation Must Come to an End. That Point Has Now Been Reached.”

First, something the wunderkinds at Facebook can party about. The Ninth Circuit Court of Appeals rejected the attempts of Tyler and Cameron Winklevoss (not-so-affectionately referred to as the “Winklevii” in the movie) to set aside a settlement agreement which purported to resolve their claims against Facebook. Apparently, the Winklevii will have to live with $165 million (based on current estimates). And although Judge Alex Kozinski’s opinion rejecting their appeal isn’t nearly as sexy and exciting as Aaron Sorkin’s depictions of the heated depositions during the case — all in favor of just having Sorkin write real life for the rest of us, say aye — there are some legal concepts worthy of note, as well as a few choice samples of judicial snark. [Ed. Note: Aye.] Continue reading the full story . . . »

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Time Warner Cable v. Viacom, or, How a Cable Company Can Get Sued for Making Television Content Available to Subscribers in Their Own Homes

We all agree that iPads are awesome, not least because they are probably the greatest procrastination tool ever invented. Sure, you could play Angry Birds on your iPhone, or your Mac, or your Conan O’Brien talk show stage, but there’s something about spending hours mindlessly tapping and swiping away on your iPad that really captures that special feeling you first discovered when your mom finally broke down and bought you the Atari system you’d been begging for for months. And if you don’t yet own an iPad, it’s safe to assume that you wish you did, as the recent launch of the iPad 2 has made people of all levels of technological savvy more excited than ever to discover new apps to help them complete tremendously difficult, hugely important life tasks, such as holding their fingers in one place for an extended period of time, tossing pretend cows at pretend objects, and playing with zippers. Naturally, every company wants to make their services iPad-relevant.

Clearly anxious to join life after iPad, on March 15th, Time Warner Cable became the first cable service to launch an iPad app that allows viewers to watch live television on their iPads. Sounds pretty cool, right? That is, until you read the fine print: the app only works for people who subscribe to TWC’s cable television and Internet service, and it only works in the subscriber’s home, when the iPad is connected to TWC’s cable modem via a WiFi router,and only for the channels to which the specific user actually subscribes. (The app may or may not also require the user to softly whisper a benediction to TWC CEO Glenn Britt, while premium channels possibly require the user to submit a photograph of themselves burning a Verizon FiOS marketing circular.) So now I have a picture in my head of my kids sitting on our couch — in front of our 60” flat screen — trying to tune in to iCarly on a 9.7” iPad, while the same episode plays in HD in the background. Very useful, indeed. It’s like picture-in-picture, the innovation that everyone thought would revolutionize television viewing, only even more obviously useless from the outset.

Setting aside the obvious limited utility of TWC’s app (which inexplicably has already been downloaded 360,000 times), Viacom is not happy. Viacom contends that the app, which allows viewers to watch several of Viacom’s channels and programming, constitutes unlicensed distribution of its copyrighted material and is a breach of its agreement with TWC. Viacom has demanded that TWC remove its content from iPad viewing, including Viacom channels Comedy Central, MTV, Nickelodeon and CMT.

Following the theory that your best defense is always a good offense (especially when you’rethisclose to getting sued anyhow), TWC filed a complaint for declaratory relief (a.k.a., the preemptive lawsuit soon-to-be-sued parties often file so that they can call themselves the plaintiff), asking a judge in the Southern District of New York to rule that its iPad viewing app is authorized under its agreements with Viacom and does not infringe Viacom’s copyrights. Viacom responded with its own lawsuit (because, again, everyone knows the plaintiffs are the cool kids in any given lawsuit), asserting a slew of copyright, trademark and unfair competition claims against TWC, and seeking hefty damages and injunctive relief to prevent TWC from continued iPad distribution of Viacom’s content. Continue reading the full story . . . »

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Q&A: I Want to Make a Film, Mixing a Commercial Video Game Character With My Own Ideas. Do I Need Permission?

Q: I want to make an independent film about a video game character by mixing the original storyline and characters with my own ideas. I didn’t know if I needed to obtain permission or rights to make it even though its going to be non-profit. I just want to be able to put it on YouTube and stuff. Thanks!

A: Your gracious author is wondering if you somehow stumbled upon his Xbox Live Gamertag and discovered that when he’s not faithfully answering legal questions or playing the role of human punching bag for his two young children, he’s sneaking off to his man hovel (i.e., his living room after everyone’s gone to bed) to play Halo 3 online with his similarly maturity-stunted friends. This mild addiction to a videogame has lead to an introduction to the world of guerilla videogame cinema known as “Machinima.” Continue reading the full story . . . »

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