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November 13, 2013 | From the blogSports

Double Fault! Judge sees possible violation for Venus and Serena filmmakers against USTA

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Shaliz Sadig Romano

Co-Managing Partner

Filmmakers beware.  In a lawsuit commenced by the United States Tennis Association (USTA) against the Venus and Serena documentary filmmakers, United States District Judge Nelson Roman denied the filmmakers their motion to dismiss the USTA’s promissory estoppel claim against them last week.

The Play by Play – What Happened?

According to the ruling, Maiken Baird, Michelle Major, VSW Productions LLC and M&M Films, Inc. (the “Filmmakers”) were producing a feature length documentary film based on the lives of professional tennis superstar athletes, Venus and Serena Williams, in 2011. In mid-summer of that year, the Filmmakers approached the USTA for permission to use archival footage of the sisters competing in the US Open and to film them while on and off the court at the 2011 US Open.

So what’s the big deal? 

The USTA, a nonprofit organization, is the national governing body for tennis and the owner and organizer of the US Open.  One of the key ways that the USTA raises revenues is by granting licenses (for a fee) to third parties to record and broadcast the US Open and to use archival footage of the event.

When the Filmmakers approached the USTA, they knew that they needed to get the USTA’s permission to include any US Open archival and live footage in the documentary.  In a writing to the USTA, the Filmmakers wrote:

“… [we] are hoping that you will help us acquire accreditation for our small crew of 3 or 4 plus 2 producers to film at the US Open… we are entirely willing to agree to film only where and what your organization will allow.  Please let me know how we should proceed.”

The USTA was willing to cooperate with the Filmmakers provided that they would be subject to the USTA’s standard licensing policies. Namely, the Filmmakers were required to use a third party videographer to shoot any live footage at the US Open and to license portions of that footage from the USTA pursuant to the USTA’s standard licensing agreement and to pay the applicable “rate card”.  The Filmmakers agreed and requested a list of items and events that they wanted to capture at the tournament.  As part of the list, Michelle Major included: “Venus and Serena playing their matches with on court sound, which we understand we will have to license…”

So What Went Wrong?

The third party film crew became unavailable shortly before the US Open. As a onetime accommodation, the USTA allowed the Filmmakers to shoot the footage themselves on the condition that they would enter into the USTA’s standard licensing agreement.  After all, they did previously promise to “film only where and what [the USTA would] allow”.  The problem is that after the US Open, the parties attempted to negotiate final terms for a license agreement on the US Open footage, but failed to reach an agreement. The Filmmakers did not pay any licensing fee.  The USTA assumed that the project had been abandoned.

Later, the USTA was not pleased to discover that the Filmmakers had gone forward with the use of both archival and live footage from the US Open in their documentary without a license and without paying for it.  They also used footage that the USTA felt was uncomplimentary to the sport of tennis.  The USTA sued the Filmmakers for, among other things, unjust enrichment and promissory estoppel. The Filmmakers hit back with a partial motion to dismiss the claims.

The motion to dismiss the unjust enrichment claim was granted by Judge Roman who reasoned that the claim was preempted by the Copyright Act. While it may have seemed like the Filmmakers caught a break, Judge Roman served back denying the Filmmakers’ second motion to dismiss for promissory estoppel.  He stated that the USTA plausibly alleged the Filmmakers made a clear and unambiguous promise and that the USTA was injured as a result of its reasonable and foreseeable reliance on the filmmakers’ promisesAdvantage USTA.

The Score Card

Here, by filming the live footage themselves, the Filmmakers had the Copyright in the footage.  However, they would not have gotten the access to film without the promises they made to the USTA and upon which the USTA relied.

The result of this case may carry significant ramifications for access to and broadcasting of live sporting competitions.  The huge TV deals that these sports organizations sign (e.g. USTA signing a $770M eleven year deal with ESPN) can lead future negotiations with filmmakers to be costly, competitive and highly restrictive.  Other sports leagues may make similar claims, trying to control the length of a broadcast, or possibly control the content to keep others from showing the sport in an unflattering light.  The USTA claimed that the Filmmakers used footage that was not in the best interest of the sport, for example: Serena’s 2009 tirade against a judge.

The main takeaway here: filmmakers should be cautious with the promises they make to parties to gain access to locations, people, footage, photos, music, etc. when making a film.  It is important to get the proper permissions ahead of time to avoid unnecessary and nasty litigation.

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