Film and TV projects start in various ways. Sometimes a producer will formally option a writer’s idea or work. But the process of working through a wide range of possible outcomes, as option agreements typically do, can exact a lot of brain damage – and cost – on a project that may never get to the starting gate.

Option – Purchase vs. Attachment Agreement

So, instead, sometimes a producer and a writer or rights owner will enter into an attachment agreement (aka shopping agreement), which postpones the heavy lift of an option agreement until a potential studio, network or other financier is ready to invest. A typical attachment agreement provides, among other things, that when the time comes, the producer and writer will each negotiate their own agreement with the financier.

Attachment Agreement vs. No Agreement

A written attachment agreement, though not as much work as a customary option agreement, still requires time, effort and cost, and it is not uncommon for producers and writers or rights owners to just start working together without a written agreement. If the project gets set up for financing, they can figure things out then; and if the project fails to get financed, well, maybe there will be nothing to figure out. 

“Nice Knowing You”

But when the project is set up, suppose the writer, rights owner or financier tells the producer “Nice knowing you”; in other words, they purport to “detach” the producer. In that scenario, the producer may explore legal options, but if there isn’t a proper written agreement, how does the producer establish his or her “attachment”, and what are the producer’s theories of recovery?

A recent lawsuit by Dana Brunetti[1], whose producer credits include Fifty Shades of Grey, The Social Network, House of Cards and Captain Phillips,offers an overview on this subject. Brunetti recently sued Discovery and others, asserting 16 legal theories in support of his attachment to the second and subsequent seasons of the TV series Manhunt (the “Series”). Before examining those theories, here’s more background.

Brunetti and Manhunt

According to Brunetti’s complaint, in 2015, he set up the Series at Discovery as a true crime anthology, with each season to dramatize different “infamous criminal manhunts, profiling both the criminal targets and lead law enforcement investigators.” In 2017, Discovery broadcast an eight-episode first season under the title Manhunt: Unabomber, focusing on the hunt for the infamous Ted Kaczynski, for which Brunetti was an executive producer.

Following the success of Unabomber, a second season was announced, to focus on the manhunt for Eric Rudolph, the 1996 Atlanta Summer Olympics bomber, under the title Manhunt: Lone Wolf. But Discovery allegedly then detached Brunetti, saying his attachment was limited to the Unabomber episodes and that, going forward, there was no obligation to use his services or compensate or credit him.

Brunetti’s Claims – General

In his complaint, Brunetti makes 16 different claims, some against Discovery, the first season network; some against Charter Communications, the network for the second season; some against Lionsgate, a production studio for the Series; some against John Goldwyn, who was initially a Discovery executive and later a Series producer; and some against all defendants. All in all, these claims display the “lawyer’s art” – taking a tangled set of facts and framing and reframing them into a variety of claims, with the goal that at least one of the claims will stick. This is what we were taught to do in law school.

Contract Claims

Not surprisingly, Brunetti starts by claiming that various documents, including an unsigned two page term sheet entitled “Closed Deal Terms”, constitute a binding contract which locks him in as a producer for the life of the Series, and that Discovery has breached this written contract by detaching him from the second and subsequent seasons (Claim #1). Notably, his contract allegations do not reference a formal, multipage agreement (a so-called “long form”).

Brunetti separately alleges an “implied-in-fact” contract – that he and Discovery, not just by their words, but by their deeds, “formed” an agreement on the same terms as their written agreement (Claim #2). Brunetti also alleges an “implied-in-fact” contract based on his disclosure to Discovery of the core idea for the Series, in a context in which Discovery had an obligation to pay and credit him for its use (Claim #3).

Further, Brunetti claims that he and Discovery-executive-turned-producer John Goldwyn, by their actions, became joint venturers on the Series, but that Goldwyn breached their venture agreement by excluding him from Manhunt: Lone Wolf (Claim #4).

Breach of Duty Claims

In addition to his contract claims, which are premised on alleged express or implied agreements, Brunetti has alleged wrongs based on breach of fiduciary and related duties.

So, Brunetti alleges that John Goldwyn, by taking actions that harmed Brunetti, breached a “fiduciary duty” of “utmost loyalty and fidelity” (Claim #5); and that Goldwyn committed breach of confidence by accepting Brunetti’s initial disclosure of the Series idea and then using the idea in the second season without Brunetti’s involvement (Claim #6).

Claims for Misrepresentation and Fraud

Brunetti’s contract claims are designed to establish his attachment. By contrast, his fraud claims, which do not depend on the existence of a contract, are intended to establish bad acts by defendants as a possible premise for enhanced damages.

Brunetti alleges that Discovery, having promised that he would be involved with all Series seasons, may not now deny its obligations. This type of claim is known as promissory estoppel (Claim #7).

Brunetti also alleges various other types of misrepresentation and fraud, including constructive fraud (Claim #8), promissory fraud (Claim #9), negligent misrepresentation (Claim #10) and fraud – intentional misrepresentation (Claim #11). While I won’t parse each of these claims, their essence, as a whole, is that Discovery either intentionally or negligently made false representations and promises or intentionally and wrongfully concealed its intention not to involve him in subsequent seasons.

Claims for Misappropriation of Value

Yet another set of Brunetti’s claims go to misappropriation of the value of his producorial contribution. So, Brunetti alleges that all of the defendants have been “unjustly enriched” by the “economic benefit [Brunetti] conferred” on them (Claim #12; Quasi-Contract / Unjust Enrichment); that, in any event, Brunetti is owed the reasonable value of his second season contribution, measured by his first season fees (Claim #13; Quantum Meruit); and that the defendants are indebted to him for those fees (Claim #14; Money Had And Received).

Miscellaneous Claims

Finally, Brunetti alleges that Charter which, as of the second season, took over the Series from Discovery, was negligent in neither investigating Discovery’s obligations to him nor performing them (Claim #15; Negligence); and that Discovery’s overall conduct amounts to an “unlawful, unfair or fraudulent business act or practice” in violation of a California statute (Claim #16; Violation of CA Business and Professions Code §17200).

What This Means For You

Definitive written agreements don’t solve all problems, but they can solve many of them. Indeed, the “long form” process itself can bring important issues, that might otherwise be overlooked, to the fore.

Brunetti’s case is an outlier. The second season of a successful TV series is not a usual fact pattern giving rise to a producer attachment dispute. Often by then, the producer has signed a “long form” agreement which is dispositive as to this scenario.

If you’re a producer, and if someone wants to detach you, as Brunetti’s complaint shows, you may be able to make a range of claims. But might it have been better to have a formal, signed agreement?

Similarly, if you’re a writer or rights owner, you should carefully consider whether you will benefit from a formal agreement with a producer who is shopping your project. Absent same, if, at some point, you wish to end the relationship, a scorned producer may have many tools in their toolkit.

Disclaimer

This Client Alert is based solely on Brunetti’s complaint. As of the date of writing, defendants have not filed their answers.

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[1] Dana Brunetti, et al. vs Discovery Communications, LLC, et al., Docket No. 19STCV17359 (Cal. Super. Ct. May 17, 2019)

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Ezra Doner is an entertainment and copyright lawyer who focuses on the film, TV and other content sectors. He has worked both as an in-house business and legal executive and as a private lawyer. He does not represent any of the parties in this case.