Hello and welcome back to What I’m Hearing+, the giant sandworm of Planet WIH. Speaking
of Dune, Eriq Gardner is back today with a report on the previously secret fight over the Denis Villeneuve films between two studios now discussing a potential merger.
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Okay, all yours, Eriq…
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| Eriq Gardner
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- Delaware shuts door to
libel tourists: Two U.S. states punch above their weight when it comes to defamation litigation. The first is Florida, Trump’s preferred battleground, where plaintiffs benefit from quick access to discovery. The president is taking full advantage in his libel suit against The Wall Street Journal over its article about the Jeffrey Epstein birthday card. As I predicted last week, Trump’s team is now citing Rupert Murdoch’s advanced age of 94 to push for an expedited deposition.
The second, less obvious state is Delaware, which has become a magnet for libel tourists—a group that now includes California Governor Gavin Newsom and French President Emmanuel Macron. After all, many media companies are incorporated in Delaware, punitive damages
aren’t capped there, and Fox News famously paid $787 million to Dominion in the same court system. Most importantly, Delaware’s anti-SLAPP law has been notoriously weak.
That’s about to change. The Delaware Senate just sent a sweeping anti-SLAPP reform bill to Governor Matt Meyer’s desk. Modeled on the Uniform Law Commission’s framework—already adopted by 10 other states—the bill allows for expedited dismissals, discovery pauses, immediate appeals, and fee-shifting to the
losing party. In other words: The defamation game in the First State is about to get much harder for plaintiffs like Macron, whose suit against Candace Owens for calling his wife, Brigitte, a man slipped in just under the wire. - More on the Endeavor cage match: Endeavor’s take-private valuation (which I
wrote about earlier this month) is now wrapping up in the Delaware Court of Chancery. As you may recall, the share price of TKO, the Endeavor subsidiary that houses WWE and UFC, nearly doubled between the announcement that Silver Lake would buy out Endeavor’s public shareholders at $27.50 a share, in April 2024, and the deal’s closing date this
spring. In the aftermath, two ambitious law firms vied to represent aggrieved Endeavor shareholders—Abrams & Bayliss, which would bill by the hour, and Rolnick Kramer Sadighi, which negotiated a fee arrangement for 20-25 percent of any increase in the deal price. The latter group had a chance at a half-billion-plus payday.
Alas, it’s not to be. The A&B Group, led by Kevin Abrams and Tom Bayliss, has officially won the right—and the billable hours—to lead
the shareholder challenge after Vice Chancellor Lori Will ruled they were best positioned to represent the class. One standout moment from Will’s opinion: her clear irritation at the fee math floated by rival firms. If she’d rubber-stamped the $27.50 per share buyout price, the contingency-based lawyers would have walked away with
$200 million in fees thanks solely to interest. As Will put it: “Equity will not countenance windfalls to counsel from Pyrrhic victories.” - No summer break for Disney lawyers: Yes, infighting among class-action lawyers actually matters. Look no further than the antitrust lawsuit against Disney over the rising cost of including ESPN in cable and streaming bundles. As I
previously reported, Disney tried to settle the case—which accuses the company of using its control of Hulu, and most-favored-nation clauses in distribution deals, to inflate ESPN affiliate fees—in a way that would also resolve possible civil liability tied to its potential FuboTV acquisition.
But lawyers
challenging the Fubo deal, in a separate case, felt boxed out and filed an objection. That sparked open hostility between two plaintiff firms—Bathaee Dunne and DiCello Levitt—which took turns trashing each other’s claims and tactics. The judge took note of the tension and divided the spoils: Bathaee Dunne will lead a class of YouTube TV subscribers, while DiCello Levitt will represent FuboTV subscribers. This all but nuked Disney’s hoped-for settlement in the antitrust case. Next, watch
DiCello Levitt angle for an injunction to block the Fubo merger with the Hulu + Live TV service.
Meanwhile, on Monday, Fubo filed a proxy statement seeking shareholder approval and laying out a revealing timeline of late-2024 Venu-era
negotiations between the companies. N.B.: The document states that Disney will owe Fubo a $130 million termination fee if any court intervenes and kills the deal. - The Paramount sale fine print…: In the details of the F.C.C.’s Skydance-Paramount
approval, there’s a noteworthy comment on “must-carry rules”—the requirement that cable TV systems carry local broadcast stations—and whether they should extend to streaming services offering linear channels.
The idea came from Fuse TV, which warned that Paramount+ could favor its own content over independent programmers, and asked the F.C.C. to impose must-carry
obligations as a condition for approval of the Skydance deal. Interestingly, the F.C.C. didn’t reject the concept outright, noting that “such matters are best addressed through rulemaking proceedings than the transaction-review process.” Translation: The F.C.C. may open a docket item soon, which could give Nexstar, Sinclair, and other local station owners a path to demand carriage on streaming platforms. Stay tuned. - The unintended
consequences of Trump’s A.I. plan: Last week, the White House released its much-anticipated A.I. Action Plan, which said absolutely nothing meaningful about copyright. Apparently, those Disney visits to the Oval Office seem to have paid off—or did they? “You can’t be expected to have a successful A.I. program when every single article,
book, or anything else that you’ve read or studied, you’re supposed to pay for,” Trump said at last week’s “Winning the A.I. Race” summit, co-hosted by the All-In podcast crew.
Of course, the notion that the U.S. might embrace a race-to-the-bottom approach on intellectual property in the name of A.I. dominance begs the question: Will other countries follow suit? Sure, Trump might be thinking of China’s long-standing disregard for American I.P.—but what about Europe? India? Latin
America? Once a precedent is set that innovation justifies I.P. appropriation, what’s to stop other nations from declaring all content fair game in the name of education, culture, or national competitiveness?
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Now on to the main story this week…
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After a months-long secret dispute over foreign adaptation rights, the two studios
recently reached a settlement in which Legendary forked over a pittance—just $13 million to resolve the claim. Perhaps not surprisingly, Legendary and Lionsgate are now in early talks about a potential merger…
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A year ago, Legendary Pictures was confronted with a genuine sci-fi nightmare. Just as its
Dune: Part Two rolled into theaters, the studio received an unexpected letter from Lionsgate claiming that it, not Legendary, held the foreign adaptation rights to Frank Herbert’s 1965 epic about political power, prophecy, and giant sandworms. In other words, the Denis Villeneuve blockbuster—which would gross more than $700 million globally—was being framed as a copyright infringement. To make matters worse, Lionsgate’s claim wasn’t entirely
ridiculous.
Several studios and producers have taken a crack at Herbert’s so-called “unfilmable” novel over the past half-century: David Lynch, backed by Dino De Laurentiis, gave it a shot in 1984; Paramount, earlier this century, tried and failed. But Legendary secured its own attempt via a deal with Herbert’s estate, which clawed back the rights to Dune thanks to a quirk in older U.S. copyright law. To wit: If an author dies before the renewal
term, the estate—not prior contractors—gets to decide who can make derivative works. That rule, which was affirmed by the Supreme Court in Stewart v. Abend (the 1990 case that had justices squinting at Alfred Hitchcock’s Rear Window), meant that Herbert’s previous movie deals were effectively canceled when he died in 1986. His heirs could—and
did—start fresh. Or so everyone assumed.
What no one seemed to consider, however, was foreign copyright law. Namely, what if the original contract that granted De Laurentiis the rights to adapt Dune in the ’80s—a contract that had survived multiple corporate mergers and a bankruptcy, and eventually landed at Lionsgate—still carried weight overseas? Some jurisdictions, perhaps unsurprisingly, don’t follow the idiosyncrasies of the 1909 U.S. Copyright Act when it comes to
reversions. Anyway, that spelled trouble for Legendary, which was betting big (and successfully) on Timothée Chalamet and Zendaya.
Finally, after months of quiet lawyering, a détente was reached. Legendary forked over a $13 million pittance, Lionsgate dropped its claim, and filming on Villeneuve’s third installment is now set to begin, with a release slated for late next year. (Both studios declined to comment about the dispute.)
The legal dust
hasn’t entirely settled, but this under-the-radar Dune deal came just as Lionsgate finalized the move to spin off its studio division from its legacy linear TV assets. Perhaps not surprisingly, Legendary and Lionsgate are now in early talks about a potential merger, according to a recent Bloomberg report.
There’s plenty of streaming-era logic behind a tie-up between the two biggest indie studios, which made The Hunger Games and Dune. Both obviously know a thing or two about empire building.
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The Dune dispute is only one recent example of a broader entertainment industry reckoning
over international copyright laws, as evidenced by a series of court cases pitting America’s idiosyncratic system against the rest of the world. The most visible case involves the heirs of Superman co-creator Joe Shuster, who are suing Warner Bros. on the theory that the rights to the character have reverted back to them in the U.K., Australia, Canada, and Ireland—even if they remain with the studio in the U.S. (I
reported on this saga, which features Marc Toberoff, back in February.) A New York judge declined to block the international release of James Gunn’s Superman, which has earned more than $500 million globally, but the case is trudging along, threatening to redraw the borders of the world’s most iconic I.P.
Then
there’s the sleeper dispute over Cyril Vetter’s ’60s hit “Double Shot (of My Baby’s Love)”, which Bruce
Springsteen has called the “greatest fraternity rock song of all time.” Vetter sold the song rights for a mere dollar decades ago, but recently exercised U.S. termination rights to claw them back. The industry got a jolt last year when Louisiana federal judge Shelly Dick declared that Vetter’s reversion extended worldwide, citing international treaty obligations. That decision is now before the Fifth Circuit, where appellate judges are weighing
whether U.S. reversion rights should, in fact, have global reach—a direct challenge to the long-standing assumption that copyright is territorial, and governed by each country’s domestic law.
The creative community is split on this one. A coalition of authors, dramaturgs, and songwriters filed an amicus brief urging the court to uphold the ruling, arguing
that Congress intended reversion rights to be borderless. If the law doesn’t apply globally, they warn, publishers could sidestep the spirit of termination by simply publishing books overseas, in territories where they still hold the rights, and import the works back into the U.S. to compete with authors’ U.S. versions.
Meanwhile, studios and record labels have expressed a different view. In their
briefs, they warn that current projects and deals will be thrown into chaos unless territorial laws are recognized. Their hypothetical nightmare scenario sounds eerily familiar: An author grants worldwide rights, dies before the renewal term, and the heir makes a deal with a rival studio. What if, say, the U.S. and U.K. courts issue conflicting rulings on who owns
what? That would leave everyone from exhibitors to merchandisers paralyzed by uncertainty.
We may be close to that situation, anyway. After all, if Legendary and Lionsgate had gone to war over Dune, both studios might have landed in the legal purgatory that the Motion Picture Association amicus brief warned about: one blockbuster, multiple copyright realities, and a licensing landscape as navigable as a sandstorm on Arrakis.
As with many things in Hollywood, closure comes
with a caveat. The Dune settlement triggered that exquisite genre of follow-up litigation: the insurance squabble. Last week, Atlantic Specialty Insurance sued fellow insurer Continental Casualty for a $3 million share of the $13 million that Legendary paid Lionsgate. The reason? Continental, which provided primary coverage on both Dune and Dune: Part Two, insisted the Lionsgate claim was a single instance of infringement—one they’d already covered. Atlantic
disagrees, and wants its money back. The complaint was filed using pseudonyms (a quaint gesture that didn’t fool yours truly).
Sure, it’s an arcane fight, catnip for the insurance bar, and a source of eye-rolling from everyone else. But I’m curious how Lionsgate’s insurance situation may impact the Michael Jackson biopic, which is possibly being
split into two parts. Indeed, with international copyright clashes becoming more frequent, and domestic and foreign rights diverging, studios may want to dust off their insurance policies and see who’s really on the hook.
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Thanks, Eriq. See everyone on Thursday.
Matt
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Puck founding partner Matt Belloni takes you inside the business of Hollywood, using exclusive reporting and insight
to explain the backstories on everything from Marvel movies to the streaming wars.
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The industry’s go-to source for unflinching reporting on the trillion-dollar business of artificial intelligence -
perhaps the single most important technology of our time. Ian Krietzberg, the powerhouse journalist behind The Deep View, delivers twice-weekly insights into the latest dealmaking and breakthroughs in A.I., and how the intersecting worlds of finance, entertainment, media, and politics are being transformed in its wake.
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