EXCLUSIVE: If you’re talking Hollywood power lawyers, there are few mightier than Patricia Glaser, Martin Singer and Ken Ziffren. With a combined 130 years of Tinseltown practice between them, they have represented studios, networks, agencies, Oscar and Emmy winners, participated in game-changing cases (hello, Conan O’Brien) and even helped resolve a paralyzing writers’ strike. As L.A’s Film Czar, Ziffren was instrumental in the 2014 expansion of California’s film and TV tax credits from a flailing $100 million to a more competitive $330 million.
In the first part of a two-part discussion, the cred-rich power trio from Glaser Weil Fink Howard Avchen & Shapiro, Lavely & Singer, and Ziffren Brittenham tackle the shifts they’ve witnessed in their profession and the industry, the cards CBS’ Les Moonves is holding and Hulu’s bottom line. Over what can only be termed a “power lunch,” Glaser, Singer and Ziffren also discussed with Deadline the multibillion-dollar sale of a majority stake of Legendary to Wanda Group earlier this year, how hard it is to get a deal done for a TV show nowadays, privacy and piracy, and the $140 million Hulk Hogan was awarded last month in his invasion of privacy case — a verdict Glaser calls “ridiculous.”
DEADLINE: All three of you have been in the game for a while, so how have things changed in legal Hollywood over the years?
GLASER: Marty and I don’t always agree, certainly Kenny and I don’t always agree on the other side of negotiations and litigation, but there’s a fierce loyalty that all three of us have to our clients and relationships, not just one-off matters. So you’re not looking for publicity unless it’s good for the client. You’re not looking for taking a stupid or ridiculous position in court unless it’s good for the client. This is not about us, it’s about the client, and that’s one of the biggest things that has changed in my opinion.
The new generation of lawyers, many of them — certainly there are exceptions that are fine — but the generation of lawyers younger than we are concerned about what’s it going like to look on Facebook and can I be in front of the story.
I mean to this day I never appear in the press ever without the client saying would you do it. I don’t even volunteer. They say would you do it. My loyalty is first to the client. I never lie to the press because that’s a stupid no-no. I mean I sometimes say I can’t answer it, but in terms of loyalty to your clients I think that’s changed. I don’t know how anybody else feels.
SINGER: I’ve been practicing since ’77 and I see a tremendous change, especially with the type of practice that I have, which is representing individuals, for the most part, going after studios. A lot has changed as society has changed. For example, the Internet has made a tremendous impact. I mean when I started practicing they weren’t even selling home videos on movies. So there has been a tremendous change in all areas of the legal profession as it affects Hollywood.
But in terms of individuals I think the biggest issue is the privacy rights has become so important for people now who are in the public eye as a celebrity, which was not there before. They did not have the same type of things here in part because of the Internet.
DEADLINE: Marty, you have a reputation as being very aggressive for your clients before and during litigation, but how do you really protect the privacy wall?
SINGER: For example, a-year-and-a-half ago when we had the celebrity hack whereby private computer, private information of photos, videos were not only hacked but went up instantly – we dealt with that. With that, one of the biggest problems today is that when you used to deal with print media in the past as opposed to the media on the Internet today, you’d have some time to deal with a story and it didn’t proliferate.
When I used to have a potential story about a client the first thing we would try to do is prevent the story from being published. Number two, get it off the cover. So if it wound up on the interior of the publication it would not make that big an issue. However, now it doesn’t matter if it’s on the cover or if it’s an inside portion because it’s going to wind up on the Internet and then everybody knows what the story is about.
GLASER: And it keeps getting repeated.
SINGER: Right. It’s almost like a whack-a-mole when you try to take it down. You can never really beat it, because, for instance, [there are] certain countries in the world, surprisingly who will not take off copyright material, content off the web.
GLASER: Kenny, you’re a transactional lawyer. What do you say?
ZIFFREN: Let me take what both of you said, agree with it and move it over to my purview. I teach a course at UCLA called Motion Picture Distribution, but really what it’s about is the sequential distribution of movies. So what we look at is the theatrical, the home video. I basically talk to them about the deals between the studios and their licensees. I have basically a piracy course that goes through every single part of it and have people come in and talk about that and do slideshows on it. So piracy is my version of your Internet if I could put it that way
DEADLINE: Aren’t they one and the same because without the Internet today, piracy would be a much smaller deal…
ZIFFREN: Much smaller, much smaller. So the way that businesses have grown up, TV right now is actually in a transition phase where we’re trying to deal with what windowing is there that’s potentially going to be profitable for everyone. What a lot of our clients are concerned about is, in an effort to gain audience and to meet the quarterly earnings targets, you have a ton of stuff that is repeated forever. And I the networks — and I am not limiting myself to over-the-air networks, cable plus — the question is, is that going to affect the downstream income on which basically both TV and features is built?
GLASER: I think that over-the-air networks are dead — with a couple of exceptions. You have a couple of brilliant entertainment executives left who are really doing a phenomenal job and are moving with the time and out in front of the time, in my opinion.
DEADLINE: Do I hear the name Les Moonves there?
GLASER: Yes. Did you see he actually renewed 11 licenses? I mean of the existing shows. Think about that. That’s amazing to me.
ZIFFREN: I think I disagree with you for a different reason. Les is still behind the eight ball because he has nothing, at the moment, but linear, and he’s done a sensational job on the linear side. But cable, all he has there is Showtime. Now, he’s trying to break into the digital world. He can’t break into the cable world anymore because, in essence, it defies entry right now.
GLASER: But he is attempting on the digital end.
SINGER: Each of the networks tried, like CBS.com, ABC.com, and I don’t know if it has been a success. In fact, that’s why Hulu…
ZIFFREN: Hulu’s losing money every year so far.
SINGER: But the companies that invested in Hulu, so you’re saying those values have not gone up because that’s what the networks have done.
ZIFFREN: The interesting part is the value of Hulu has gone up tenfold since it started but it continues to lose money.
GLASER: You use the word value, which is a relative term because one of the things that’s fascinating to me is in a traditional sense the value of some of the studios, you sit there and scratch your head and say, “Oh, really?” But you have foreign investment coming in, way overpaying. I mean there’s a recent sale that I’m still scratching my head and thinking how in the heck did they manage it? Over $3 billion, they sell to Chinese investors.
DEADLINE: For Legendary?
GLASER: Yes, Legendary. Then you sit there and you see some of the valuations being put on Paramount and you scratch your head and say, “Oh, come on.”
SINGER: The reality is entertainment is sexy and you will always find buyers willing to overpay.
GLASER: No matter how badly the companies are run.
SINGER: Absolutely correct.
GLASER: One thing that has not changed in my view, at the end the day it’s all about the contract. The number of good lawyers drafting the agreements, transactional lawyers, Marty and I have to clean up the messes. Kenny avoids the messes.
At the end of the day, contracts, which I remember from law school was the most analytically difficult subject that you took because everything else was just learning a body of law. No problem. But with the entertainment world everything at the end of the day comes to a contract and many cases are resolved because there are reasonable lawyers on both sides.
ZIFFREN: Let me take it one step farther talking old and new. I used to be able to pick up the phone and make a license-fee deal and do three of those or four of those in a day. Why? There were really only three numbers that mattered. How much for the pilot, how much for the series and how much for the subsequent seasons. The reason that was true was this was in the day when we had what’s called the financial interest and syndication rules because basically the network had no rights other than as an exhibitor.
Today it takes me four months to make a network license deal and there’s two bad reasons for that. One is I think that the deals are getting so much more complicated because of the rights issues. Secondly, what happens is the middle management that used to be able to make those deals has to send them upstairs. So middle management on the buy side, whether it’s at a studio or at a network, to me seems largely paralyzed. Then the second problem is since no one knows what the future is you have a kind of double situation. It goes upstairs and then they’re paralyzed.
GLASER: But still the deal is what is important.
ZIFFREN: I’m agreeing with you but where I’m going with this is that because of the rights which takes us back to the technology issues all over again in one form or another, because of the rights situations you can’t get done. When you do get it done I find I’ll look at a contract a year after I’ve done it and say I don’t recognize this.
DEADLINE: How so?
ZIFFREN: Because we were going in and out on something and that no longer applies but this little thing down here in the fourth paragraph, that’s what’s really interesting now. So it’s really problematic.
GLASER: Life has changed.
DEADLINE: You say no one knows what the future is, but I’ve heard you say that mobile is the future.
ZIFFREN: We know the direction. We don’t know the result.
DEADLINE: One result we do know is the $140 million that Hulk Hogan was awarded last month in his invasion of privacy case against Gawker over a sex tape of him that Nick Denton’s outlet put up online. While of course there is likely going to be an appeal, there are some who say this could have a big impact and others who say it won’t mean a lot unless you’re an outlet that puts up sex tapes. What do the three of you think about the award Hogan got and its consequences?
SINGER: I think there’s a significant likelihood that there’s two more hurdles as a litigator. First you got a jury verdict. Now you have the judge who can make a decision. Will the judge reduce the amount and then more importantly going up to the appellate court? There’s a very significant issue with the appellate court because one of the Florida appellate courts has already ruled that it was fair use and that it was appropriate, newsworthy material…
GLASER: That cannot be fair use.
SINGER: I understand that. I’m just saying how we don’t know ultimately what will happen with the appellate courts. It’s also that amount that was awarded, as a trial lawyer you know, is based on the reckless conduct of individuals. As a litigation lawyer you can…
ZIFFREN: And really poor testimony in court.
SINGER: But you can’t joke around a deposition, that’s the key.
I’ve dealt with Gawker significantly over the years. I had a case, they called it a sex tape but it wasn’t a sex tape, it was a tape with people who wanted to have sex. It was Eric Dane, Rebecca Gayheart, and another woman. They were not having sex but anyway they broadcast it. We owned the copyright. They didn’t care. You know why? This was a copyright violation, which was different than the Hulk Hogan case. They didn’t care because at the end of the day they figured we’re going to get so much extra money by promoting this tape on our website and the same thing with the Quentin Tarantino Hateful Eight script over two years ago.
Before that script appeared on Gawker they had issued two articles and basically said if you have the script send it to us. We want to see it. So they were encouraging people to violate the law.
GLASER: How does a guy stand up in front of a jury, these are well-meaning people who want to do the right thing, and say, “I am so emotionally damaged.” I mean I actually read this. “My career is ruined.” Really? Hulk Hogan’s career is probably enhanced 12 times over. It’s ludicrous.
In my opinion the dollars are ridiculous. The much more interesting issue just from an intellectual standpoint, if there is anything intellectual about that case, is that it’s the expectation of privacy. I think people have a right to be in a bedroom expecting that it will be private. How you should be penalized for that is a different issue. Maybe there should be a sizable chunk of change, but $55 million dollars of compensatory damages is ridiculous.
SINGER: It is significant because one of the reasons in the Hulk Hogan case and the way the lawyers positioned the matter was it wasn’t Hulk Hogan’s privacy that was violated. It was the privacy of Terry Bollea, Hogan’s real name. So they tried to say he, as an individual, had an expectation of privacy that he would have sex as opposed to a celebrity. Not that it makes a difference. I don’t see that much of a difference whether you are a celebrity, whether you’re an athlete or a shoemaker. If you have sex in your bedroom and you don’t know you’re being taped that tape should not be exploited. But the amount is so extraordinary, it’s just a runaway jury.
GLASER: Would you agree with me that the lawyers who lost that trial, that was a bad day at the office?
ZIFFREN: Yes. Very bad day.
SINGER: A very bad day.
Coming Tuesday: Glaser, Singer and Ziffren address the show that everyone’s talking about and two topics that could change the way Hollywood does business.