This article was reprinted with permission from the Entertainment Law Reporter. www.entertainmentlawreporter.com
Court orders Twentieth Century Fox to give “Inspired by” – though not “Created by” – credit to authors of “Harsh Realm” comic books in opening credits for “Harsh Realm” television series; Fox had licensed television rights to comic books, but gave “Created by” credit to writer Chris Carter pursuant to WGA agreement.
When WGA credit standards clash with the Lanham Act, the Lanham Act prevails. That at least is the message taught by federal District Judge John Martin, in a case involving the on-screen creative credits for the Twentieth Century Fox television series “Harsh Realm.”
“Harsh Realm” began as a comic book series created by writer James Hudnall and artists Andrew Paquette. Fox licensed the television rights to the comic books, but neither Hudnall nor Paquette were involved in writing the television series’ scripts. Pursuant to the creative credit provisions of the WGA collective bargaining agreement, the opening credits of the TV series indicated that it was “Created by Chris Carter.” According to Fox, this credit was necessary and proper, because although the TV series was “derived” from the comic books, Carter’s characters and plot situations were “totally different” from those in the comic books.
The TV series did acknowledge the contributions of Hudnall and Paquette, but only with a brief “Special Thanks” credit to the comic books’ publisher, far removed from Carter’s “Created by” credit. That drew and objection from Hudnall and Paquette in the form of a Lanham Act lawsuit in federal District Court.
In response to the comic book authors’ request for a preliminary injunction, Judge Martin found that “While there are substantial differences between the comic books and the television series, a trier of fact could find that it is misleading to represent Chris Carter as the creator of ‘Harsh Realm’ without giving adequate recognition to the role [Hudnall and Paquette] played in its creation.”
Fox argued – with the support of the WGA – that it could not give Hudnall and Paquette the credit they demanded, because of the WGA agreement. “The problem with this argument,” Judge Martin responded, “is that [Hudnall and Paquette] are not members of the WGA and are not bound by its contract. If the listing of the credits violates [their] right under the Lanham Act, the fact that the violation is pursuant to a contract with a third party is no defense.”
On the other hand, the judge did recognize that the term “Created by” has “taken on special meaning as the result of the application of the WGA contract to hundreds of television productions. Thus, it could be as misleading to order [Fox] to give [Hudnall and Paquette] a credit to which they are not entitled under the WGA contract as it would be to deny recognition to their contribution to the finished product.”
Fox offered to give Hudnall and Paquette an “Inspired by” credit, at the end of each episode. Judge Martin acknowledged that this would be an improvement, but would not solve the problem of consumer confusion. Instead, he ordered Fox to insert the “Inspired by” credit immediately following the “Written by” credit, in the series’ opening credits.
Hudnall and Paquette were represented by Raymond A. Bragar, Bragar Wexler Eagel & Morgenstern, New York City. Fox was represented by Achilles M. Perry, O’Melveny & Myers, New York City.
Paquette v. Twentieth Century Fox Film Corp., 54 U.S.P.Q .2d 1286, 2000 U.S.Dist.LEXIS 2134 (S.D.N.Y.2000)