Leaving Neverland, but Not Litigation

Leaving Neverland, But Not Litigation | Page 1

Leaving Neverland, But Not Litigation

By: Jack Greiner on March 6, 2019 on graydon.law

Earlier this week, HBO aired the documentary “Leaving Neverland.” The film is a four hour examination of allegations by Wade Robson and James Safechuck. Both claim they were molested by Michael Jackson in the early 90’s.

If the two men are telling the truth, Jackson was a monster. If they are lying they have done grave and unwarranted damage Jackson’s legacy. Suffice it to say, this is the type of production that tends to lead to litigation.

And indeed, “Leaving Neverland” has. But there’s been no libel suit. And there is a simple reason for that. Dead people, or more accurately, their estates, can’t sue for libel. The law says that a people’s interest in their reputation dies with them. And it’s not uncommon for film makers (and I’m not talking about documentaries here) to take some liberties with dead characters in film bios.

Given that Michael Jackson died almost 10 years ago, “Leaving Neverland” wasn’t likely to draw a libel suit no matter what it said about Jackson. But that isn’t the end of the story.

Michael Jackson’s estate has sued HBO for a breach of contract (contracts, unlike reputational interests survive death). And the claim is based on a license agreement that HBO entered in 1992, to obtain the rights to broadcast a live concert from Jackson’s “Dangerous” tour in Bucharest. Included as an exhibit to the that agreement was a covenant whereby HBO agreed not to “make any disparaging remarks concerning [Jackson] . . . or do any act that may harm or disparage or cause to lower in esteem the reputation or pubic image of [Jackson] . . . .”

In addition to seeking relief for the alleged breach of contract, the lawsuit is also trying to compel an arbitration provision. If successful, the case would be resolved in arbitration, rather than in a trial.

There are some really fascinating elements in the suit:

1. Does the estate take on more than it needs? The complaint contains 90 numbered paragraphs. And most of them detail why the Documentary is false, why Safechuck and Robson are liars, and why the filmmaker is biased. Technically, because the contract breach is for “disparagement” the truth or falsity of what was said isn’t at

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issue. Disparagement is the legal equivalent of “if you can’t say something nice, don’t say anything.” But the estate lawyers seem to be treating the case like a defamation case – where falsity is a necessary element. I’m guessing this results from the realization that winning on disparagement alone would be a pyrrhic victory. “Even if it was true, you shouldn’t have said it” is a lot less compelling than “you’re a liar!” 2. Is the complaint a little over the top? I’m kind of old school, but it seems like it to me. There are several paragraphs laying out allegations about the struggles of the cable industry and then conclusions that HBO was so desperate for content, they ran the documentary essentially without concern for its accuracy. Complaints are supposed to contain a “short and plain statement of the claim.” Here that would be, HBO agreed to not disparage Jackson and this documentary does just that. Conclusory allegations about HBO’s motivation – in a breach of contract case – are irrelevant. But I’ve seen this trend more and more recently. The complaint is as much a press release as a legal pleading. Maybe more so. 3. Will the arbitration be public? Typically arbitrations are private affairs. They are not open to the public as a civil trial would be. That is part of the reason parties include an arbitration provision in the contract in the first place. But in the complaint, the Jackson estate anticipates the potential blow back about trying to shroud the proceeding in secrecy, and requests HBO to agree to conduct the arbitration in a public proceeding. That is an interesting ploy, and one I’ve never seen before. 4. Is timing everything? I was telling a non-lawyer friend about this case the other day and they asked a pretty common sense question – how long does the non- disparagement clause last? Typically, contracts have defined terms. And courts won’t enforce a contract that purports to last forever. So what is the term here? That is less than clear. The contract itself is a license agreement that allowed HBO to show one time only, a Jackson concert. The non-disparagement clause is contained in Exhibit I to the license agreement. That exhibit primarily deals with the use of confidential information. And as to the use of any confidential information, Exhibit I sets out a time frame wherein HBO is prohibited from using or disclosing the confidential information – specifically “during or after HBO’s contract or HBO’s relationship with Licensor and/or Performer.” But the non-disparagement provision is in a totally separate paragraph farther down in the contract. And it has no such time frame stipulated. That could be a big problem for the estate. And the license agreement itself doesn’t provide any real time frame, since it really only concerns the one time broadcast. There isn’t a “term” there.

The legal effect of the ambiguity surrounding the term of the agreement is the kind of issue that can get a complaint dismissed right out of the gate. If so, the estate may not the

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opportunity to prove its claims about the alleged falsities in the film. That would seem like a loss.