In the wake of Channel Nine and CJZ’s apology to Gina Rinehart, production companies should be wary of the issues that landed these companies in hot water with the mining magnate. In this post, media lawyer Stephen Digby explains the strategies required to avoid the same fate as TV series House of Hancock.

Stephen Digby is the principal and co-founder of Digby von Muenster Law – mumbrella

– March 7, 2017

After Rinehart’s successful legal action in the Supreme Court of NSW in 2015, which gave her access to part two of House of Hancock ahead of its screening on Nine, it appeared that the parties had come to a settlement that, whilst confidential, seemed to allow broadcast of part two of the docudrama under certain conditions.

Some of these conditions included specific disclaimers in the opening and closing credits the show was a “drama, not a documentary”, and that Rinehart was not interviewed by the producers. Several minutes of footage were also cut from the broadcast.

However, this did not seem to placate Rinehart, as she took Nine and CJZ back to court claiming defamation and malicious falsehood, as well as misleading and deceptive form that excused almost everything, including any “breaches of alleged moral behaviour”. These releases were repeatedly tested in US courts by, amongst many others, unwitting college guys, politicians and etiquette tutors.

The lesson from Borat is that with release forms – provided that they are true and accurate in their disclosures and well packed with the required indemnity and warranty protections – you can significantly limit your exposure to liability from any loss, or damage that may result from the broadcast.

So, whilst Borat offended almost all of its participants, it still lives on in cinema, and House of Hancock which offended one person, is seemingly off the air forever.

3. Use settlement as a bar to future proceedings

Despite an iron-clad release, as outlined above (and as Borat showed), court proceedings can still be unavoidable. If that does happen, then it is almost always more sensible to seek some form of out-of-court settlement that all parties can live with, or, is the best “worst-case”. This appeared to have been the case with House of Hancock, but, unlike that situation, the settlement did not prevent Rinehart from bringing further proceedings.

With this in mind, any production company (or broadcaster) should be very careful to make sure if it does reach settlement outside court, that a key part of this agreement is a widely-drafted and extensive release clause which acts to bar the party who brought or threatened the action from re-visiting the matter in any future legal proceedings in relation to it. Without knowing the full details of the Nine/CJZ/Rinehart confidential settlement, we won’t speculate why this don’t happen on this occasion, but, ideally, these types of clauses as part of a settlement are designed to put an end to all legal proceedings, once and for all, now and in the future.

4. Preparing for the worst

As an essential pre-requisite to a broadcast commission, production companies are required to take out errors and omissions insurance. Whilst these policies can often be difficult to navigate, the House of Hancock experience will force production companies to look more deeply into what these policies do and don’t cover.

Whilst premiums can be expensive, broadening the insurance to specially cover the company from the costs of litigation against all types of allegations could well be worthwhile. Given the breadth of the allegations made by Rinehart, these claims may go beyond simply unauthorised use of titles, copyright infringement and breach of privacy, to defamation, idea and story theft, and injurious falsehood, as well as misleading and deceptive conduct. A full and frank conversation with your insurers at the time the policy is being put in place, and close attention as to what it includes, and, more importantly, excludes, could give producers a great deal more comfort when faced with these types of proceedings.

Is it worth it?

Like all businesses, production companies need to do a cost/benefit analysis of the risks and rewards of doing these sorts of shows, but, with luck, these types of measures might help reduce that risk. However, as House of Hancock proves, this type of issue is not always possible to avoid.

David Taylor, from Playmaker; Graham Yost, writer/producer of The Americans, Justified; and Shelley Birse, writer/producer of The Code.

Australian television is undergoing a revolution, albeit a gentle one, in which the voices of screenwriters are rising in volume. It is, in part, a response to the success of risky genre-based dramas such as The Kettering Incident, Wentworth, Top of the Lake and The Code. “I feel like there are more broadcasters prepared to take those kind of risks, more than ever before,” screenwriter Shelley Birse says. “I’ve been writing 20 years, and it feels like the last three or four, the ceiling on what you can get people excited about has just been blown out of the water.”

Birse, who wrote The Code for Playmaker Media, is in Los Angeles as part of a program sponsored by Playmaker’s US parent, Sony Pictures Television.

The program, Scribe, pairs Australian writers with US writers as part of a program to help them develop new work and skill them as writer “showrunners”.

The writer “showrunner” model dominates US television, with most scripted projects steered by a writing producer, typically teamed with a directing producer and several other co-executive producers.

In Australia, the writer’s voice has historically been less prominent and drama development has been network executive led.

“The writers’ rooms are not that different, but the continuation of that writer’s voice into production, that’s where the gulf in Australia has been really different,” Birse says. “That just doesn’t exist. [In the US] the writer’s voice is the loudest and most important all the way through.”

Birse and another writer Glen Dolman, who wrote the award-winning telemovie Hawke for Ten, are the first two writers in the program.

Birse is working with Graham Yost (The Americans, Justified) and Dolman with veteran CSI producer Carol Mendelsohn.

The intention is that Yost and Mendelsohn will continue to steward the two writers, and the projects they are working on, remotely once Birse and Dolman return to Australia.

Playmaker’s David Maher says the scheme is also a reaction to a larger cultural shift in which borders are breaking down and local fine print – such as accents – are mattering far less to international broadcasters who are looking for new content.

“There are no concerns about accents, and parochial storytelling or overt regionality being a barrier, to be able to do that is far less of a concern now than it was 20 years ago, or even 10 years ago when I was working for Fox,” Maher says.

Australia’s success in exporting scripted formats is mixed, though we were unusually early pioneers of the idea.

In the 1980s Grundys, now Fremantle Media, was a prolific seller of scripted soap opera remakes to Europe, including The Restless Years, Sons & Daughters and Prisoner.

More recently, Fremantle’s Wentworth has been reversioned in the Netherlands, Germany and now Belgium, and Maher confirms an Italian adaptation of Playmaker’s drama House Husbands is underway.

In the case of Birse’s The Code, the series was sold – in its current format – to the BBC in Britain and to DirectTV in the US. It has also been sold to Denmark, France, Germany, Iceland and Canada.

Maher hopes the relationships built empower Australian writers and push them out of their comfort zone.

“Empowering writers is the reason we did it, and the chance to access some of those amazingly talented writers, like Graham and Carol,” Maher says.

“It’s an opportunity to bring Australian writers to LA for a week where they can actually sit and work, bringing their ideas and to work with craftsmen like Graham and Carol, it’s just invigorating,” Maher says.”To then get home and have someone like that still there as a long-distance mentor, is very lucky.”

Birse says her experience working with Yost has already paid dividends.

“He will push me to think a bit more boldly and tell me to make some mistakes that I might not be prepared to make without feeling like somebody that experienced is helping hold the wheel a bit,” she says.”I feel like he’s going to give me a lot of shit a long the way,” she adds. “That’s good. He’ll hassle me, give me a hard time, but it’s of the best kind of quality.”

Michael Idato – SMH – August 11 2016

He is one of Australia’s most successful television exports, making his considerable fortune at the helm of the world’s most watched US drama franchises. Now, NCIS showrunner and NCIS: Los Angeles creator Shane Brennan is plunging some of his hard-earned money back into the local industry which gave him his start.

The internationally acclaimed, Bendigo-born screenwriter has committed $1 million a year of his own fortune to fund the development of Australian screenwriting talent, in an unprecedented philanthropic gesture which could help grow more of our own storytellers.

Brennan has teamed with his former script-producing buddy, Tim Pye (an in-demand writer and script consultant on TV favourites including House Husbands and Dr Blake’s Murder Mysteries), launching the fund later this month, in Sydney and Melbourne.

Pye and Brennan have begun canvassing leading production houses and independents for writing talent and scripts to develop and invest in; with a determination to give writers more power and control over their stories, from pre-production to broadcast.

Pye told TV Insider Brennan’s financial support would provide an extraordinary boost to local screenwriters (who often get pushed down the financial and artistic pecking order here — after actors, producers and directors).

“It’s really exciting to have this kind of philanthropy in the Australian marketplace … and shifts the power to writers which is how it happens in the US, where (screenwriters) have much more control.”

Brennan began his career in journalism, but switched to TV writing back in the 1980s; cutting his teeth on local TV productions including Special Squad, The Flying Doctors and All Together Now. It was while working on an Australian-based remake of Flipper that he came to the attention of US television studio bosses.

Brennan travelled back and forth to Hollywood, before jagging his biggest career break, in 2003, on the original NCIS program (now in season 15, starring Mark Harmon and broadcast to more than 200 countries). He is credited with creating the spin-off series, NCIS: Los Angeles (starring Chris O’Donnell, LL Cool J and Linda Hunt) where he has been at the wheel since its launch back in 2009.

Last month it was announced he would be stepping down as showrunner at NCIS: LA after eight seasons and penning 168 episodes.

Holly Byrnes, The Sunday Telegraph – August 7, 2016