Menu
0

800-523-2319experts@tasanet.com

Articles

Economic Damage Claims in the Entertainment Industry - Speculative or Beyond a Reasonable Certainty

TASA ID: 3919

Economic Damage Claims in the Entertainment Industry –
Speculative or Beyond a Reasonable Certainty

The large majority of lawsuits that involve individuals in the entertainment industry revolve around lost wages or fees. These claims often allege millions of dollars in lost earnings depending on the role the person plays within the industry. Given the exorbitant amount that some actors, writers, directors and producers earn, it’s easy to understand how often these claims get made. However, the operative word in this scenario is some.

The question one should ask is how do you best determine whether a particular individual should be categorized into that rare group of earners? In other words, how do you determine whether the claim is purely speculative or can be proven within a reasonable degree of certainty?

When investigating lost wages claims, one must understand that the entertainment industry is nothing like the traditional job market. Lawyers, bankers, or accountants will have tax statements that show their earning capacity to date, and they can expect their salary to increase as they steadily progress up the ladder and gain vital experience and contacts. This is not the case in the entertainment industry. Due to the volatile nature of the business, many outside factors affect one’s marketability and earning capacity. As a matter of fact, in some positions, particularly the producer and actor, there is no guarantee that you will ever get another job. There’s a reason why the phrase, “You’ll never work in this town again,” was coined in this industry. The competition is stiff, buyers’ tastes shift on a dime and there are thousands of people ready to pounce on your position at any given moment. Even taking maternity leave can severely damage your worth in the marketplace. Additionally, so many people are party to the decision- making process that one can be weeded out of contention for countless reasons entirely out of one’s control and unrelated to one’s talent or ability.

Million dollar earners are rare, and even rarer still are those that can earn that type of income consistently over a long period of time. It is critical to look at:

  1. The earnings history and work consistency of the plaintiff
  2. Awards or accolades that may boost future earnings
  3. Comparable earning capacities of the individual’s peers
This last point is crucial because it is important to compare apples to apples in terms of actual work history and money earned. The amount of money plaintiffs thought they would make throughout their career, based on self-comparisons with high achieving players of similar age and looks (as in the case of an actor) and tastes/genres (as in the case of a producer,) does not often play out in real life to their satisfaction. How many good looking, young, talented actors achieve the career status of Julia Roberts?

To illustrate the difference between a claim that seemed highly speculative versus one that was more grounded in reality, let’s look at two actual cases. Both are wrongful deaths with males in their early 40’s, one a producer, the other a photojournalist/director.

Case 1: Wrongful Death of a Feature Film Producer.

In the case of the producer, the family/estate was the plaintiff, and they were seeking damages in the high eight figure range. The producer had been involved in the production of a very successful film franchise and had earned $2M-$5M per year over a four year period prior to his death. Although he had no other discernable credits, before or after that hit franchise, the estate was making a claim that he would sustain that kind of earnings over the course of the next 20 years of his life. This claim was highly speculative for the following reasons:

  1. He was not the sole producer on that franchise; his partners had significant credits before and after the franchise, had financed the film with their own money, and had set precedents that allowed them to negotiate a very high revenue split which he, by association, was allowed to participate in.
  2. He had not a single producing credit before the franchise was produced.
  3. The two films he subsequently produced with those same partners flopped.
  4. He had no projects in the development pipeline that would have indicated--had he lived--that his future earnings potential would be significant.
  5. He had won no awards or nominations to give credence to his excellence as a producer.
Plaintiff’s attorneys mounted their eight figure claim based on the concept that because his name was associated with this large franchise, any future projects would carry the glow of the prior hit film, and thus would surely be produced and achieve equal success. Two problems, he had NO projects in the development pipeline, and the industry is extremely mercurial, as we have previously discussed, when it comes to continued success.

Nothing in the entertainment industry is “de facto,” and, moreover, without a tremendous amount of the proverbial spaghetti thrown against the wall, an enormous amount of effort applied in moving projects forward, and a big dose of luck, many producers, and particularly “one hit wonders,” never produce a second hit. Here are some statistics:

Looking at 10 of the top independent production companies (companies that consistently produce at minimum 1-2 movies a year over a 5-10+ year period,) there was an average 10-1 development-to-production ratio.1 This means they had at least 10 projects in development for every 1 film that was produced. In the case of the Plaintiff, he had no projects in development, even 4 years after the first film of the franchise was a box office success, and thus no prospects to produce a film in the near future, let alone a successful one that would garner him $4M a year. (Note: The average time to develop a project to production is 12-36 months per picture.)

Another interesting statistic to look at is the number of producers who had one significant hit and no other successes versus those producers who have had more than one hit in their career. I looked at 20 producers with at least one film considered an unqualified hit, (a 10-1 revenue-to-cost ratio or better.) Out of the 20, only 2 had a second or third film that garnered considerable box office success. Even those producers whose names were associated with phenomenally successful films, (i.e. SOMETHING ABOUT MARY,) did not produce a second successful film.2 Empirical evidence such as this reinforces the fact that there is no certainty of success for anyone working in the entertainment industry.

This case did not go to trial and settled for a much lower amount than was originally demanded. The settlement amount was in line with the levels of real projected revenues derived from the existing franchise rather than from speculation of what could have occurred.

Case 2: The Wrongful Death of a Photojournalist/Documentary Filmmaker

In the case of the photojournalist/documentary filmmaker, the Plaintiff was his surviving family who was seeking damages for lost earnings in the mid-seven figures. The lost earnings would have come from his work as a photojournalist/director for hire, as well as from producing and directing. Although the potential damages in this case were much less than the previous case, and the criteria for establishing reasonable certainty was lower, the deceased had other merits that made the case less speculative and more credible.

  1. He was a 4-time Emmy-winning photojournalist and had won several other awards from his peers and authoritative industry bodies.
  2. He had a consistent track record of work history and of being hired for the top projects in his field and region.
  3. The first project he initiated as a Director/Producer with his own company was a high profile project on the same level with successful, award winning documentary filmmakers of the time, and he was already in discussions with interested buyers.
  4. He had been given accolades by his employer and was viewed as an asset to the team and someone with an upwardly mobile career. It was clear had he continued in his field, he would have been quite successful.
Furthermore, the world of documentary film differs from that of feature film in that the costs of production are much lower and the director/producer has more control over the marketing and distribution of the film because the recoupment costs are smaller. Thus, the earning ratios are more in line with the traditional job market, and more likely to be predicted over the long run, than the enormous fees potentially available to the feature film world.

The attorneys and economist on this case developed a moderate range of earning potential for the deceased, and were conservative in their overall damage claim. Moreover, the claim was supported by relevant work history, awards and industry documentation. Thus, overall, the claim was within the realm of reasonable certainty and did not show signs of speculative excess on every front.

The case went to trial, and the Plaintiff won the wrongful death suit. Although the jury did not award the family the full amount requested, the settlement was well within the mid range of the earnings pro forma, and they walked away feeling well served by justice.

Clearly, the validity of any claim should be judged on a case by case basis and on its individual merits. Certain key elements need to be examined within the specific context of the individual case and its particulars, in order to determine the viability and merit of the claim. Because the industry can provide such high paydays, and the career trajectory of certain rare individuals can be so meteoric, it is enticing for people, with even a little bit of experience or credibility, to assume that they will be the next big thing. A single successful project, a few good reviews or a string of good references do not automatically translate into future box office success or consistent high salaries. It’s important to do extensive due diligence and work with professionals in the industry who have significant experience in the related field to help you navigate the wild and wooly world of film.
1 IMDBpro, Baseline a division of Studio Systems (See Appendix I for companies.)
2 IMDBpro, Baseline a division of Studio Systems (See Appendix II for producers.)

APPENDIX I

The following companies represent very strong independent production entities, producing on average 2 films per year.

All of these companies have a significant development slate so that projects are constantly in the pipeline to keep the production rate at close to 2 films per year.

The table below shows the rate of project development vs. # of films produced.
Company Time Frame Produced Films Avg per year In Development
Evolution (Mgmt Div) 2000-2007 10 1.4 4
Radar 2002-2008 12 2 11
Overture 2007-2008 3 1.5 5
Original Films 1992-2008 40 2.5 37
Bender-Spink (Mgmt Div) 2001-2008 12 1.7 55
Lawrence Bender Prod 1997-2006 11 1.2 8
Killer Films 1998-2007 29 3.2 20
Contra Films 2004-2007 5 1.25 15
Zide-Perry (Mgmt Div) 1996-2008 16 1.6 8
Industry Ent (Mgmt. Div) 2000-2007 18 2.5 4
The average number of films an individual company produces is 1.9.

APPENDIX II

The first section lists key producers on successful low budget genre films and franchises, who had no prior successful credits.

Gross Dollars in ( ) after the title are listed for Theatrical and Video Rentals combined unless otherwise noted.
Firm Producer Additional Credits Box Office after initial "Hit Film"
Hostel ($77M) Chris Briggs Hostel II, Poseidon (co-prod) Hostel II did okay, no other major hits to speak of
Scary Movie ($320M) Eric Gold no movie since 1in prod. After 8 years
Friday the 13th ($78M) Sean Cunningham 17 other films as prod and dir No other hits
Teenage Mutant Ninja Turtles($202M) Simon Fields 9 other films No hits
Kim Dawson No other feature films N/A
Cabin Fever($66M) Evan Astrowsky 11 films Negligible
Sam Froelich Negligible
Lauren Moews Negligible
Blair Witch ($303M) Robin Cowie Altered Negligible
Gregg Hale Say Yes Quickly, Altered Negligible
Open Water ($69M) Laura Lau No Other credits
Napoleon Dynamite ($89M) Sean Covel Beneath, The 12 Dogs of Xmas Negligible
Think Tank Negligible
Chris Wyatt Coyote Negligible
Munn Powell
The Full Monty ($257M Theatrical) Uberto Pasolini The Closer You Get Negligible
The Emperors New Clothes Negligible
The second section lists producers who may have had credits before their first “hit” film or franchise, and these producers also produced at various budgets and outside the horror and comedy “genre” films.
Film Producer Additional Credits Box Office after initial "Hit Film"
Pulp Fiction($213M Theatrical) Lawrence Bender 21 other titles Good Will Hunting
Exorcism of Emily Rose ($160M) Beau Flynn The Guardian (Kevin Costner) Not a hit
Number 23 (Jim Carrey Not a hit
After Sunset Not a hit
Stacy Sher 15 movies afterwards Only one to break $100M was Vanilla Sky
3 Men and a Baby ($230M+) Ted Field 14 movies Two Hits - Texas Chainsaw and Runaway Bride
Ted Field 14 movies Two Hits - Texas Chainsaw and Runaway Bride
Barbershop ($124M) Bob Teitel Negligible
Traffic ($275M Laura Bickford (Won Academy Award) Winter Passing, Fur Negligible
Crash ($129M) Cathy Schulman (Won Academy Award) Thumsucker, Illusionist Negligible
Blade ($178M) Peter Frankfurt No Producing credits outside of Blade Franchise
Scream ($202M)) Cary Woods 7 films after that No hits
Boys Don't Cry ($29M) Christine Vachon 51 titles, many critical hit No real hits/profits
Something About Mary $360M) Frank Beddor Received good profits for this film No Hits


This article discusses issues of general interest and does not give any specific legal or business advice pertaining to any specific circumstances. Before acting upon any of its information, you should obtain appropriate advice from a lawyer or other qualified professional.

This article may not be duplicated, altered, distributed, saved, incorporated into another document or website, or otherwise modified without the permission of TASA.


Bookmark and Share
Previous Use of Vocational Experts in Disability Determination
Next Very Fine Pitch Wire Bonding: Re-Examining Wire, Bonding Tool and Wire Bonder Interrelationships for Optimum Process Capability
Print
Tasa ID3919

Name:
Email:
Subject:
Message:
x

Let Us Find Your Expert 

Note: This form is to be completed by legal and insurance professionals ONLY. If you are a party in a case that requires an expert witness, please have your attorney contact TASA at 800-523-2319.

Submit

Search Experts

TASA provides a variety of quality, independent experts who meet your case criteria. Search our extensive list of experts now.

Search Experts

Testimonials

  • I think it's always good to have access to experts when [TASA] make[s] the process so easy."

    Scott McIntosh, Lewis McIntosh & Teare, Royersford, PA

  • As a busy practitioner, managing a sizeable caseload, I can use all of the help available to me. If I can outsource a task, particularly one as important as securing a qualified expert, I will jump at the opportunity. I use TASA in nearly every case where I need to find an expert witness, be it an engineer, an architect, an economist, etc. They have thousands of qualified experts to refer in virtually any field. Best of all the process is extremely simple. When I need an expert I simply contact TASA, whose knowledgeable representatives ask you targeted questions about your case, your legal theories, and your goals, in order to find the right expert for your case. I usually receive CVs and calls from the potential expert within hours. If you find the originally selected person is not a good fit – for whatever reason – TASA will work with you to find the right person. I would happily recommend this service to any attorney."

    Patrick K. Gibson, Gibson & Perkins PC, Media, PA

  • Ms. Darlie I. McDonald RN was awesome on the witness stand, and we prevailed in our case to the tune of  [a] (highly unusual [amount] for a medical malpractice [case] in our area).  I'd highly recommend her."

    Shane Reed, Shane A. Reed Law Office, Jacksonville, OR

  • I appreciate your inquiries and offers of assistance as well as the consistently high-quality, well-organized, and erudite TASA webinars, which invariably have excellent presenters."

    Maurice S. Kane, Cummings McClorey Davis Acho and Associates PC, Riverside, CA

  • Steven Kursh was an outstanding technical expert on our ecommerce IP lawsuit. He completed a massive amount of work on extremely complicated material, in a very short period of time. His work product was first rate and I think he would have done a terrific job if the case proceeded to trial. He is very articulate and helped us. I only wish we had gotten him involved sooner in the litigation."

    Daniel J. Brown, Reiss Sheppe LLP, New York, NY

  • I thank you all for the response to my request for an expert witness...Both Mr. Scott and Mr. Bianchi appear to be well-qualified for this case, but we have hired another expert. As always, I was impressed by TASA's ability to produce exceptionally well-qualified candidates with great speed."

    John Thomas Dzialo, The Law Offices of John Thomas Dzialo, Santa Ana, CA

  • Thank you for your quick response and the names of the two proposed experts. The situation that gave rise to our search for these experts has resolved and we will not need to retain them. However, we will continue to keep TASA in mind as these needs arise from time to time as your breadth of coverage for experts of all types is unparalleled, in my experience."

    Bart W. Brizzee, County of San Bernadino, San Bernadino, CA

  • I have used TASA for the last five years for locating an expert for many personal injury cases. On each and every occasion, TASA was able to find me more than one qualified expert. With such a variety of experts, I was able to select one who met my client's needs in prosecuting these claims. I found the experts TASA referred not only qualified, but available on a moment's notice. Your fees are reasonable and fair, and I will continue to use TASA for the remainder of my career."

    Robert Oushalem, Esq., The Law Office of Robert Oushalem, San Jose, CA

  • I recently used TASA for the first time to locate an expert to testify in a case requiring rather unusual expertise and where there were no applicable regulations or standards for guidance. TASA referred an expert in California who was everything a lawyer looks for in a forensic expert. He was promptly available for consultation, efficiently prepared for deposition and trial and very persuasive and credible with the jury. TASA's administrative services and assistance in locating this expert were excellent, and we would certainly use both the expert and TASA in the future."

    Theodore Phillips, Miller Hauser Law Group, LLP, Placerville, CA

  • TASA has always given me first-class service, but in a recent matter, TASA found the 'needle-in-the-haystack' expert witness we feared didn't exist. We needed an expert for a very narrow and limited issue in a very narrow and limited industry. Because TASA has an extensive expert witness database, it was able to give us a referral almost on the spot. It's why I always turn to TASA first."

    Kathleen A. Herdell, Law Offices of Kathleen A. Herdell, St. Helena, CA

  • There are numerous companies that provide litigation experts. However, I always choose the TASA Group because of their quick response in finding a qualified expert for my particular case. I have extreme confidence in the TASA Group and will continue to use their services in the future."

    Katie A. Killion, Esq., Chiurazzi & Mengine, LLC, Pittsburgh, PA

  • I spent hours trying to locate an expert in a very technical case involving a defect in a medical device. I could have saved a lot of time by calling TASA first. Within hours, I was supplied with the name of an engineer who had more than 30 years of job training, education and expertise in the precise area involving the device. Bravo TASA!"

    Timothy W. Peach, Partner, Peach & Weathers, San Bernardino, CA

  • We were involved in a case pending for more than five years with seven parties from three states. Three mediations failed before we looked to TASA for an expert. TASA referred an expert who clearly understood the complexity of the project and could effectively support his opinion. If it weren't for his expert advice and deposition testimony, the case would not have settled. Interestingly, the case settled within 90 days from the date this expert began."

    Renee Colbert, Esq., Corporate Counsel, W.G. Tomko, Inc., Finleyville, PA

  • Using TASA to find experts for defending our client in a negligent homicide case ended up being one of the most important decisions we made in trial preparation. The experts they suggested were exactly what we needed for the case. I truly did not expect to find experts that would be such a perfect fit for the nature of case. TASA provided us with highly qualified experts in somewhat narrow fields of expertise. A large percentage of our victory is due to the experts recommended by TASA."

    Marta Farmer, Esq., Carl S. White Law Office, Haver, MT

  • I have used TASA's services since the 1980's and have never been disappointed. TASA is indispensable for locating that hard-to-find expert. TASA representatives have always been courteous and pleasant, with the attitude that they cannot do enough to help. I expect to continue using TASA throughout my career."

    Brad W. Greenberg, Esq., Smyth Law Offices, P.C., Brockton, MA

  • I needed to retain a multitude of scientists from a variety of disciplines for a complex litigation. Initially, I went through a series of interviews with an extremely knowledgeable and professional team of TASA advisors. They were able to find highly qualified experts in the specific fields, all of whom turned out to be superior in qualification and area of expertise to my adversary’s experts. I am a TASA believer!"

    Nooshin Namazi, Partner, Nicoletti Hornig & Sweeney, New York, NY

  • TASA always comes through in the difficult IP cases. Their representatives work with you to refine the search criteria and quickly send you a list of very qualified experts."

    Timothy L. Boller, Principal, Seed Intellectual Property Law Group, PLLC, Seattle, WA

  • Special thanks to our TASA referral advisor for her quick response to our initial request—we were extremely happy with how fast TASA was able to assist us! Your group does excellent work, and it is always my first stop when looking for an expert."

    Susanne K. Sullivan, Senior Attorney, Southwest Airlines Corporation, Dallas, TX

  • When we needed an expert in a patent infringement lawsuit, we turned to TASA. We were looking for a witness qualified in two unrelated technical areas, and TASA worked with us to identify and refine our requirements. TASA performed well, promptly providing us with several excellent candidates to consider, one of whom we retained."

    Joseph T. Miotke, Partner, IP Practice Group, Michael Best & Friedrich LLP, Milwaukee, WI

  • Our team had a very positive experience with TASA. The Expert was professional, efficient, and certainly an expert in his field. His work and testimony contributed to a winning decision for our client! We will recommend the Expert and TASA whenever appropriate."

    Stephanie Sprague, Esq., CT

  • (The Expert) WAS A PERFECT FIT for my case: qualified, competent, easy to work with, attentive to detail, knowledgeable, smart, communicative, enthusiastic, resourceful—have I left anything out? I highly recommend TASA and would be happy to share my experience with anyone else. Thank you!"

    Michael Porrazzo, Esq., The Porrazzo Law Firm, Mission Viejo, CA

  • The expert was very thorough. TASA was quick to respond with an answer to my request. I have used TASA in the past under various other law firms and have been pleased. TASA continues to live up to expectations and then some."

    Anne Desormier-Cartwright, Esq., Jupiter, FL

  • Your organization found us an appropriate expert witness in less than one day. This was excellent service. The expert you found was excellent and a pleasure to work with."

    William A. Ehrlich, Esq., Allentown, PA

  • (The Expert)…accomplished exactly what we wanted. TASA was very prompt and efficient in locating him. All fees were reasonable."

    J. Michael Lehman, Esq., Bruce, Bruce, & Lehman, Wichita, KS

  • We needed an Internet expert right away to meet a deadline. One phone call to TASA, and in less than a day, TASA called back with a list of 8-10 experts who were exactly what I needed. The TASA expert I chose knew the business and mechanics of the Internet so well—he was a PhD and professor who had written a book on the subject—that he put the fear of truth in the defendant that caused him to settle. When I get the kind of service that I did from TASA, I stick with it and use it again and again."

    Philip Green, Attorney at Law, Green and Green, San Rafael and San Francisco, CA

  • Excellent—in a word. I just do not have the time to hunt for experts. (The Expert) was fantastic. Thank you for providing such a quality service."

    Francesca Carinci, Esq., Steubenville, OH

  • TASA stands for Tops At Serving Attorneys. It’s always rewarding working with TASA."

    Marshall A. Bernstein, Esq., Philadelphia, PA.

  • That was, however, one of the best and most interesting webinars I've seen in the last few years.  Thank you for hosting it and introducing me to such a knowledgeable and caring person." - Referencing the Medicolegal Consequences of Post-Traumatic Stress Disorder in Civilian and Military Populations webinar. 

    Lori Bauer Apodaca, The Law Office of Lori Bauer Apodaca, Los Lunas, NM 

  • I needed a dental malpractice expert to assist me in a complex negligence claim. The very able staff at TASA had no difficulty identifying a knowledgeable professional who rendered a reasonable opinion in support of the case, which aided our client in receiving a fair amount of compensation. I am grateful to TASA for its invaluable assistance!"

    John Hermina, Hermina Law Group, New York, Pennsylvania, Maryland & Washington, DC

  • For many years I have relied upon TASAmed to provide excellent medical malpractice experts. As a sole practitioner, I find it reassuring to know that a seasoned expert is just a call away. Usually, TASAmed has found just the right expert in a day or two. The support and guidance I receive from TASAmed is a vital part of my law practice, and I have come to expect both great service and high rewards from my TASA cases."

    Thomas J. Massey, The Thomas J. Massey Law Firm, Fallbrook, CA

  • The caliber of physicians that TASAmed has referred to us is superb. Prior referral groups used the same experts over and over again. With TASAmed I have access to experts all over the United States. I’m not limited to the same experts. The TASAmed staff is easy to work with and very professional, with an established track record. When I call for a medical expert, I’m called back the same day, and I often have an idea of what expert will be contacted before my first call is completed."

    Kari Alexander, Certified Legal Nurse Consultant, Texas

  • We hadn’t been able to find the medical expert we needed, and, frankly, I didn’t think we’d find one in that field. TASAmed was able to find us an expert with the exact expertise and medical experience we needed. Your referral advisor was very helpful and found our expert in one day."

    Kurt Osenbaugh, Partner, Alston & Bird, Los Angeles, CA

  • TASAmed’s service was prompt and efficient in connecting us with the right person. The expert was so cooperative and helpful. With how challenging it is to find a narrow area of medical expertise, it’s extra helpful to have your TASAmed pool to plug into instantaneously."

    Greg Roosevelt, Esq., Law Office of Greg Roosevelt, Edwardsville, IL

  • TASAmed has connected me to credible experts in four medical cases just this year. TASAmed and the referred experts respond quickly, the fees are reasonable, and the referrals are well tuned to the fields I request. Since the experts are already associated with TASAmed, they are comfortable having substantial conversations about the case, both before and after record review."

    Martin A. Cannon, Esq., Cannon Law Offices, Crescent, IA

  • I have used TASAmed a number of times and have always been happy with your give-and-take timeliness. Once I requested a medical expert in a particular field, but, after speaking with your referral advisor, we concluded that an expert in another field would be more effective. That same day, I spoke to two experts the advisor gave me, and I retained one."

    Mark A. Lope, Esq., Lope and Honlihan, Butler, PA

  • Very close to the time of trial, the TASAmed advisor quickly referred me to several experienced ER trauma physicians to review medical records and prepare me for cross-examination. After selecting my expert, I over-nighted records for review, and the doctor found valuable information for my client's defense. Thank you, TASAmed, for this timely, specific, valuable referral."

    Charles Morgan, Esq., Law Office of Charles L. Morgan, Jr., Charlotte, NC