Television (Traditional to Broadband)

“The Good Lord Bird” Trailer Just Released

CDAS represented producer Blumhouse in its deal to acquire rights to the James McBride book, the deal with Ethan Hawke (who stars as abolitionist John Brown), and the deal with Showtime where the miniseries will premiere on August 9. Watch the trailer here.

MiMO Studio to Adapt “The Pout-Pout Fish” as Animated TV Movies

On behalf of publisher Macmillan, Simon Pulman and Marc Hershberg negotiated the deal for MiMO Studio to adapt award-winning pre-school book series The Pout-Pout Fish, written by Deborah Diesen and illustrated by Dan Hanna, for multiple animated TV movies. A New York Times best seller when released in 2008, The Pout-Pout Fish received the Bank Street – Best Children’s Book of the Year award the following year.

Three Tips for Broadway Producers Recording their Shows for Streaming Platforms

By Frederick Bimbler and Marc Hershberg

Broadway producers interested in recording musicals for streaming platforms should pay attention to a new lawsuit.

The complaint was filed by Chapman Roberts, a Broadway music arranger, and alleges that a team of Broadway producers entered into an agreement with the plaintiff in 1994 to make original vocal arrangements of some famous songs from Jerry Leiber and Mike Stoller for their musical revue, Smokey Joe’s Café. According to the complaint, the contract stated that Roberts’ arrangements in the show could not be performed, transcribed, recreated, copied, published, or recorded without his permission.

But, according to the complaint, in 1999, Broadway Television Network recorded a couple of performances of the Tony Award-nominated show without Roberts’ permission.

“When Roberts learned of this, he contacted BTN, and BTN then asked retroactively for permission to commercially distribute the recording of the [m]usical to the public,” his lawyers claim. But, it is alleged that no agreement was ever reached, and Broadway Television Network broadcast the recording as several pay-per-view events and then licensed it for distribution through BroadwayHD, a video on-demand service for musicals and plays.

More recent digital streaming licenses of the recording purportedly have occurred, and in October, Roberts sued Broadway Television Network, BroadwayHD, and several other related parties in federal court, alleging direct and contributory copyright infringement and the intentional and knowing distribution of false Copyright Management Information.         

The merits of this lawsuit aside, which the court will decide in due course, Broadway producers should bear in mind the following three lessons from the allegations in the lawsuit.

1.     When creating an audiovisual recording of a theatrical production, Broadway producers should be certain to obtain all of the necessary rights. Experienced entertainment attorneys can help producers determine which rights are necessary and who owns them – and then negotiate the deals for those rights.

2.     The rights to various protectible elements required to perform a work on stage do not necessarily include the right to create and exploit an audiovisual recording of the same work on stage. While some contracts might include provisions that address audiovisual productions, for many elements of a theatrical production, it is likely that the audiovisual rights will need to be granted in a separate license agreement.

3.     If Broadway producers cannot successfully obtain all of the necessary rights for an audiovisual recording of a theatrical production, then they should not proceed with distributing the recording. Missing some of the necessary rights will frustrate deals with distributors who do their homework, and the recording might result in a lawsuit, like this lawsuit involving Smokey Joe’s Café.

The case is Chapman Roberts v. BroadwayHD LLC et al., Index No.: 1:19-cv-9200 (S.D.N.Y. Oct. 4, 2010).

YouTube Launches Stick Figure’s “Stay Home With: Yungblud”

“Stay Home With: Yungblud,” a weekly series featuring the U.K. recording artist and his band as they create music while in quarantine, premiered this week as part of YouTube’s “Stay Home #With Me” campaign. Amy Stein represented producer Stick Figure Entertainment in the license agreement with YouTube and agreements with Yungblud and his label, Interscope. Viewers are encouraged to donate to No Kid Hungry.

“A Secret Love,” from CDAS client Blumhouse, Rated 100% on Rotten Tomatoes

Blumhouse’s bittersweet documentary “A Secret Love” premiered today on Netflix to rave reviews. Simon Pulman represented Blumhouse in its deal with the filmmakers, Briana Hill was involved in the film’s financing, and Calvin Mohammadi and Simon represented Blumhouse in its deal with Netflix. Watch the trailer here.

CDAS IP Group and Partner Nancy Wolff Recognized in Chambers USA 2020


The highly regarded “Guide to the Top Lawyers and Law Firms” described CDAS as a “highly skilled boutique offering excellent capabilities handling trademark and copyright infringement cases, as well as substantial portfolio management matters. [CDAS] exhibits expertise acting for market-leading entertainment, media and digital platform clients.” In addition to recognizing the firm for Intellectual Property: Trademark, Copyright & Trade Secrets (New York), Nancy Wolff was also recognized as “a leading attorney in IP issues relating to digital media, counseling clients in a broad range of matters including disputes and licensing.”


“Wendy” Now Available on Most Digital and MPVD Providers

This beautiful reimagining of J. M. Barrie’s beloved characters, produced by Andrea Cannistraci’s client Paul Mezey and for which Andrea provided production legal services, is widely available as of today. Watch the trailer here.

Andrea Cannistraci Negotiated with HabeshaviewTV for “Enchained” to be the First Feature Film on the New Streaming Platform

Enchained, which airs beginning April 18,2020, premiered in Ethiopia in 2019 to critical and popular acclaim. Advisor to the International Emerging Film Talent Association (IEFTA), Andrea represented the film and filmmaker Moges Tafesse in this deal. See the trailer here.

Contractual Disruptions: How They Arise and How to Prepare

By Elizabeth Altman and Tyler Horowitz

With the recent spread of the novel coronavirus COVID-19 and its unprecedented precipitation of social-distancing, work-from-home policies, shelter-in-place orders, and limitations on foreign travel, many individuals may be questioning whether certain contractual obligations are excused. This article provides a primer on the contract concepts of force majeure, impossibility and impracticability, and related provisions that affect, and may in certain instances excuse, performance of contractual duties owing to changed circumstances outside any signatory’s control.

Force Majeure

A force majeure clause is a contract provision that excuses a party’s performance of its obligations under a contract when events beyond the party’s control make performance impossible. To invoke a contract’s force majeure clause, a party must typically demonstrate that (1) a disruptive event enumerated by the force majeure clause has occurred; (2) the risk of nonperformance was not foreseeable; and (3) that the event has rendered the party’s performance impossible.

A party looking to invoke a force majeure clause must follow several steps:

First, a party must examine the contract’s definition of what constitutes a “force majeure” event and demonstrate that the change in circumstances was included within the definition. Force majeure events will have been enumerated within a force majeure clause and generally include: Acts of God; severe acts of nature or weather events including floods, fires, earthquakes, hurricanes, or explosions; war; acts of terrorism; epidemics; acts of governmental authorities such as expropriation or condemnation; changes in laws and regulations; and strikes and labor disputes.

Determining whether a force majeure clause applies is a highly fact-intensive exercise, because whether a party is excused for non-performance stems from the specific contractual language used within an agreement. For example, some contracts’ force majeure provisions may specify disease, epidemics, or pandemics as cause for non-performance, while others may only refer to disease-related disruptions by reference to “Acts of God” or catch-all phrases such as “any event or circumstance beyond the reasonable control of the affected party.”

Where disease-related occurrences have been specifically enumerated, a party may find it easier to invoke its force majeure clause in the context of COVID-19. It may be more challenging where, instead, there is only catch-all language in place; however, a catch-all phrase, or similarly broad language (such as a force majeure clause that begins its list with “including, but not limited to”), may provide some protection, particularly if courts relax their traditional preference for excusing performance solely based on clearly enumerated circumstances, in response to an onslaught of COVID-19 related contract disputes. Additionally, where a party can point to a governmental restriction in place because of COVID-19, it may have additional grounds to defend nonperformance. 

Second, an affected party must demonstrate a causal link between the force majeure event and its failure to perform. In other words, a party’s performance must be impossible because of the changed circumstances surrounding the contract. For example, in light of COVID-19, the owner of a performing arts venue may successfully argue that recent government orders in his or her state have made it impossible to continue under contract with scheduled performances and obligations to performers, considering the widespread uptick in closures of non-essential businesses. On the other hand, should both parties to a contract be capable of conducting transactions online and/or having a history of remote online transactions, it may be more difficult to argue that COVID-19 has rendered performance impossible (at least without demonstrating other exigent circumstances).

Upon successfully invoking a force majeure provision, a party may either suspend performance or terminate the contract outright, depending on the scope of its force majeure clause. It is thus important to verify the terms of the clause, which may also dictate that force majeure coverage will only kick in after a certain period has elapsed, such as 90 days.

If the contract does not contain a force majeure clause, a party may turn to the common law defenses of impossibility or impracticability to excuse performance (though note that New York only recognizes impracticability in rare circumstances, such as in connection with sales of goods under the Uniform Commercial Code). A party may also invoke additional contract provisions where present, such as the “Material Adverse Effect” provision common to many commercial contracts.

Impossibility & Impracticability

Impossibility and impracticability exist where circumstances extraneous to a contract render a party’s performance either impossible or impractical. Although the contract itself was adequately formed and would otherwise maintain its binding effect, these defenses recognize that a post-formation change in circumstances has fundamentally altered the ability of the parties to perform under it. A party’s performance will be excused if the following elements are met:

  • An unforeseen event has occurred. Akin to the events enumerated in force majeure clauses, these may include natural disasters, strikes, and other major events.
  • The nonoccurrence of this event was a basic assumption of the contract. At the time of contracting, the parties did not foresee the event that has since occurred, regardless of whether it was theoretically “foreseeable”. This assumption of nonoccurrence need not be explicitly outlined within the contract, but must be generally apparent from the nature, terms, and purpose of the contract. Under the Uniform Commercial Code, which governs sales of goods, a “[d]elay in delivery or non-delivery in whole or in part by a seller . . . is not a breach of his duty under a contract for sale if performance as agreed has been made impracticable by the occurrence of a contingency the non-occurrence of which was a basic assumption on which the contract was made.” U.C.C. § 2-615. For example, this provision may apply in the event of a labor dispute where striking workers fail to deliver a shipment of the seller’s goods. In such cases, a seller must seasonably notify the buyer of the delay or non-delivery, and, where a seller may still partially perform, must allocate production and deliveries among customers in a “fair and reasonable” manner.
  • The effect of the event has rendered the party’s performance impossible or impracticable. The changed circumstance must be extreme, such that it is unduly burdensome or impossible for the party to comply as originally planned; where impossibility is concerned, under New York law, the subject matter of the contract must have been destroyed or the means of performance must have been rendered objectively impossible. The party seeking relief from its obligations under the existing contract must also show that it was not at fault in causing the event. The reasoning behind this requirement is clear: a party should not be able to take advantage of his or her own misconduct. Here, it is also important to determine how risk has been allocated between the parties under the contract. Even where the other requirements are met, if the adversely affected party assumed the risk of the occurrence of the changed circumstances during contract formation (impliedly or explicitly), it will not be able to invoke impossibility or impracticability. To gauge risk allocation, a party should examine the express language of the contract (i.e., what disruptive events the parties contemplated, and which party was to bear the associated loss and expense), or even the parties’ course of business and dealings. Industry customs may also provide clues to proper risk allocation. For example, industry custom in property rentals is for a premises owner to obtain casualty insurance rather than the party hosting its event on site. As such, risk for the loss of the property would flow more naturally to the owner.

Other Contract Clauses

Various additional contractual provisions may relate to an unexpected event like COVID-19.

  1. Material Adverse Change (MAC) Clause

Many commercial contracts include a material adverse change clause (otherwise known as “material adverse effect”). Where present, this clause could excuse performance or allow a party to suspend performance should a materially adverse change occur. Events constituting a materially adverse change are, as with force majeure provisions, commonly enumerated specifically within the contract and typically also involve wide-scale disruptions.

Historically, MAC clauses have been difficult to enforce, as courts are wary of excusing contractual performance for short-term changes in circumstances, but as is possible with force majeure and related defenses, courts may shift their stance in the coming months. For example, following the September 11, 2001 attacks, New York courts were more amenable to viewing declining rental prices in Manhattan as grounds to declare a material adverse change (See In re Lyondell Chem. Co., 567 B.R. 55, 123 (Bankr. S.D.N.Y. 2017), aff’d, 585 B.R. 41 (S.D.N.Y. 2018) (citing River Terrace Assocs., LLC v. Bank of N.Y., 10 Misc. 3d 1052(A), 2005 WL 3234228 (N.Y. Sup. Ct.), aff’d, 23 A.D.3d 308 (N.Y. App. Div. 2005))). Further, New York courts have allowed commercial parties to cease contractual performance based on demonstrated extensive financial losses during the pendency of a merger (see Katz v. NVF Co., 100 A.D.2d 470, 471 (N.Y. App. Div. 1984)).

  • Covenants

Commercial contracts commonly contain covenants obligating parties to undertake or refrain from certain behavior. While it is unlikely that parties would have allocated obligations or risk regarding COVID-19 in a covenant, it is worth revisiting covenants within a contract to gauge whether they will affect or be affected by current circumstances. For example, many agreements include covenants obligating parties to provide notice that they are invoking force majeure or that material events have occurred that could give rise to litigation or loss beyond the ordinary course of business.

  • Termination Provisions

Even if parties may not utilize force majeure or other contractual provisions to justify non-performance under a contract, there may be termination provisions that kick in based on the occurrence of certain contingencies, whether at-will or otherwise, such as for late delivery or a breach of a “time is of the essence” clause. It is worth viewing any such provisions within the context of the larger defenses of impossibility, impracticability, and force majeure excusal of nonperformance, in case the other party nonetheless attempts to invoke these doctrines to negate invocation of a termination provision.

This is not the law’s first brush with the unexpected, and although this is a time of wide-reaching uncertainty, woven into contract law, particularly, is a system to guide parties through the serious impacts that unexpected events may have. Our team at Cowan, DeBaets, Abrahams & Sheppard LLP will continue to provide updates on legal developments related to the present circumstances and we are available should you request further or specific guidance.

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