‘Back to the Future II” From a Legal Perspective: Unintentionally Visionary


Courtesy of Universal Pictures – ‘Back to the Future II’. Image: http://www.hollywoodreporter.com/thr-esq/back-future-ii-a-legal-833705

The inside story of Crispin Glover’s lawsuit over George McFly: Was an actor hired to mimic another actor playing a character?

Yes, there were hoverboards, drones, wearable tech, videoconferencing and even a baseball team in Miami. Back to the Future Part II also brought back George McFly, the father of the protagonist traveling to Oct. 21, 2015, which as everybody knows, is this date in history.Except George McFly wasn’t played by the same actor, Crispin Glover, who appeared in the first film. Glover didn’t like the sequel’s script, and so he threw out a $1 million demand to reprise the role. The filmmakers refused, and so they took a face mold of Glover that was created during the first film to help out the makeup artists, hired a different actor, Jeffrey Weissman, and through the use of prosthetics, made it appear as though the same thespian was performing the part.

Back to the Future II is today being celebrated as visionary in many respects, but let’s not forget the legal drama that ensued after this happened. The 1990 lawsuit that Glover filed against Universal Pictures for violating his right of publicity predated other famous cases including Vanna White’s lawsuit over a Wheel of Fortune robot hostess in a blond wig and Gwen Stefani’s legal action over a digital avatar in the Band Hero video game. Glover’s case never got far enough in the court to set legal precedent, but it is often invoked when actors like Fast & Furious star Paul Walker become indisposed and filmmakers contemplate tricky ways to resurrect performances. The advance of technologies like holograms, with the potential of reviving dead stars and allowing living ones to be in multiple places, tends to invite discussion of wonderful possibilities and legal limits. Enter Glover and his unwitting participation in a film for the ages — and a lawsuit that Philip K. Dick would have loved.

“Had they only hired another actor, which is kind of what I thought had happened, that would have been totally legal, and I would have been completely fine with it,” said Glover in a radio interview last year, pointing out that the film switched the actresses playing Marty McFly’s girlfriend without resorting to prosthetics.

The use of an old face mold went too far.

Glover sued, and according to Doug Kari, his attorney at the time, the complaint itself was purposefully short and simple.

“I kept the factual details out of the complaint, preferring that we hold our cards close to the vest,” says Kari. “Having interviewed Jeffrey Weissman, the replacement actor, in the privacy of my office, I knew that we held some aces.”

Kari says that Weissman had gone to Glover feeling a bit disturbed by the role and what was happening on the set of Back to the Future II. There, others were referring to him as “Crispin.” (Weissman wasn’t available to comment.)

“Jeffrey told me a story that one day, [executive producer] Steven Spielberg walked on set and laughed and said, ‘Hey Crispin, I see you got your million,’ ” says Kari. “To me, those anecdotes showed they were trying to take Crispin’s persona.”

Universal filed a demurrer, arguing that the publicity rights claim should fail because the filmmakers were only trying to perpetuate the George McFly character. As the dispute heated up, Glover and Kari began to have conversations with each other about the future of computer graphic technology and how what was being done to Glover might impact other actors. The argument was passed along to the judge.

“What I said to the judge was, ‘Things may happen in the future that will make this important,’ ” says Kari. “We need to draw a line.”

The judge rejected Universal’s bid to toss the lawsuit. What’s more, she agreed to let Kari depose director Robert Zemeckis, screenwriter Bob Gale, actor Michael J. Fox, Spielberg and others. The plaintiff also wanted a complete accounting of the finances of Back to the Future II because a demand was being made for a share of the film’s profits.

Taking the parties into chambers, the judge strongly urged settlement. A deal was indeed made, reportedly for $760,000 at the behest of the company that insured Universal. (Attorneys wouldn’t confirm the amount.)

The settlement unfortunately left a lot of uncertainty as to where the proper line is. Studios often recast roles. Hiring an actor that looks like a predecessor might be fine. Hiring an actor that is made up to look like a predecessor might not be. The line is blurry to say the least.

When Glover brought his case, the U.S. Supreme Court had already affirmed the value of a performer’s right of publicity. The high court examined a man named Hugo Zacchini who performed a human cannonball act suing a local Ohio TV station for showing his act. “The broadcast of a film of petitioner’s entire act poses a substantial threat to the economic value of that performance,” wrote Justice Bryan White.

In the years that followed Glover’s lawsuit, there would be substantive developments in the law. In 2001, looking at an artist who sold lithographs bearing the faces of the Three Stooges, the California Supreme Court put forward a test of “whether the depiction or imitation of the celebrity is the very sum and substance of the work in question.” Ten years later, examining Stefani’s lawsuit against Activision over a digital avatar, a California appeals court refined the test toward an examination into the transformative nature of the work, agreeing with the singer’s contention that motion-captured re-creations of her likeness was too “realistic” to qualify as such. Earlier this year, the 9th Circuit Court of Appeals considered that ruling when reviving a case brought by former professional football players suing over Madden NFL. It’s a decision that’s now being petitioned for review by the Supreme Court.

The Glover case was similar to Stefani’s with respect to a performer who once did something (agreeing to perform) without any expectation or contractual understanding of how it would later be used. Regarding Back to the Future II, the parties struggled to elucidate the difference between perpetuating character and ripping off someone’s identity. Glover found enough of a legal advantage to advance, and had the case gone to trial, his lawyer would have shown a jury the way in which the movie spliced together clips from the original film showing Glover with remade clips of an actor posing as Glover being George McFly. The case didn’t get there because of the settlement, but maybe the dispute had some psychological impact on those involved. Zemeckis, for example, would go on to helm Forrest Gump, which spliced historical footage to create the illusion that the main character was meeting Presidents John F. Kennedy, Lyndon B. Johnson and Richard Nixon.

In recent years, Glover has taken credit for changing Screen Actors Guild rules on the illicit use of actors. Kari believes that’s accurate, though a spokesperson for SAG-AFTRA says the guild can’t identify changes to its agreements. Nevertheless, the Glover case did raise quite a bit of consciousness throughout Hollywood about the possibilities and risks of reusing an actor’s performance and has become quite excellent shorthand for the types of publicity rights disputes inherent in new technologies. It’s quite amazing that the Chicago Cubs are making a World Series run this year, but nobody should forget the unintentionally visionary nature of the George McFly character in the film.

In: thr.com

Read also: Back to the Future: 13 Things you May not Know


What ‘SNL’ got wrong in its Spicer satire

Sean Spicer and actress Melissa Mccarthy as “Spicey”. Image: http://assets.nydailynews.com/polopoly_fs/1.3345475.1500661053!/img/httpImage/image.jpg_gen/derivatives/article_750/trump.jpg

By: Dean Obeidallah

(CNN) – Thanks to “Saturday Night Live,’ we have two versions of Sean Spicer. There’s the sympathetic one who Melissa McCarthy plays hilariously on the late-night show. And then there’s the Spicer who has defended many of Donald Trump’s outrageous claims with false statements and outright lies.

The problem is that the “SNL” version made Spicer far more endearing than he actually is. And this gives us a sense of the power of political comedy. Comedy can be used to make us laugh while reminding us of a politician’s transgressions. But the risk is that comedy can make a flawed political figure seem sympathetic and even help us overlook his misconduct.

Just look at the reactions when Spicer announced his resignation as press secretary on Friday. Democratic Rep. Pramila Jaypal tweeted, “Huge blow for “SNL.” Farewell, Sean Spicer.” Journalist and CNN contributor April Ryan, who had battled with Spicer in the past tweeted, “It is over no more Melissa McCarthy!” While actor Zach Braff wrote on Twitter “actual footage of Sean Spicer” and shared a clip of McCarthy looking forlorn on the streets of New York.

Don’t get me wrong — I had a similar reaction to the news of his resignation. But if McCarthy and “SNL” had not depicted Spicer in the fashion they had, do you think we would’ve seen such a strong reaction?

Instead, many of us would have responded the way The New York Times “eulogized” Spicer on Saturday — as the person who began by lying on day one as the White House spokesperson and only continued from there.

As a reminder, Spicer lied to us at his very first press conference after Trump was sworn in, defending Trump’s baseless claims about the size of the inauguration crowd. Spicer emphatically declared, “This was the largest audience to ever witness an inauguration — period.” But, as the fact checkers at the Washington Post put it, “This is an appalling performance by the new press secretary,” as he made “a series of false and misleading claims in service of a relatively minor issue.” They concluded Spicer’s statements that day earned him the maximum four Pinocchios but added, “we wish we could give five.”

And we can’t forget Spicer defending Trump’s fact free claims of mass voter fraud by making up sources to help Trump cope with losing the popular vote. At the January 25 press conference, Spicer claimed that a 2008 Pew poll “showed 14% of people who voted were noncitizens.” However, the nonpartisan Politifact dubbed that statement false since the Pew poll “makes no mention of noncitizens voting or registering to vote.

And the list goes on of Spicer’s outlandish statements in defense of Trump — from his remark that Adolf Hitler “didn’t even sink to using chemical weapons” in an effort to gin up support for Trump’s bombing of Syria to false statements about the role Paul Manafort played in the campaign in an effort to help distance Trump from his former campaign manager.

But, for many, McCarthy’s wildly popular depiction of “Spicey” as a likable bumbling character has come to define the former press secretary. In fact, the last time we saw McCarthy as Spicer on “SNL” in May makes this very point. While “Spicey” was defending a Trump lie, one reporter asked isn’t there a chance Trump is lying to you, to which McCarthy sympathetically responded, “he wouldn’t do that, he’s my friend.”

“Spicey” then headed off to confront Trump, played by Alec Baldwin, demanding to know if Trump ever lied to him. Baldwin replied, “Only since you started working here.” Through comedy, “SNL” had erased Spicer’s moral culpability for lying to us by making it all Trump’s fault.

In contrast and thankfully, however, “SNL” has been careful not to forgive Trump’s transgressions. In fact, in that same “SNL” sketch, Baldwin tells McCarthy to “kiss me.” “Spicey” responded, “I can’t — I have a wife and took vows.” “SNL” then reminded us of Trump’s vile comments on the Access Hollywood bus when Baldwin tells McCarthy, “I’m famous — it’s okay.”

In the time of Trump, comedy is playing a critical role in serving as both a cathartic release and source of empowerment for those who oppose Trump. But comedy shows must be aware that there’s a fine line between causing us to laugh at a political figure’s misconduct and minimizing them through comedy that makes him undeservedly likable.

Given the stakes, hopefully comedians will continue to use their skills to remind us of Trump’s misconduct and not turn him into an orange haired version of “Spicey.”

Dean Obeidallah, a former attorney, is the host of SiriusXM’s radio’s daily program “The Dean Obeidallah Show” and a columnist for The Daily Beast. Follow him @deanofcomedy. The opinions expressed in this commentary are his. For more on humor, watch CNN’s “The History of Comedy” Sundays at 10 p.m. ET/PT.



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Donald Trump’s Addled and Ominous Interview with the Times

The big “get” of President Trump’s interview with the New York Times was confirmation of a story that’s been going around Washington for months. Photograph by Mark Peterson / Redux

It is often said, and with ample reason, that much of what Donald Trump says isn’t worth a jot. As Tony Schwartz, Trump’s ghostwriter, noted last year, “lying is second nature to him.” When he isn’t telling outright whoppers, he exaggerates things outrageously, and his utterances often bear little resemblance from one day to the next. On Tuesday, he said that Republicans should let Obamacare crash and burn. On Wednesday, he said that he wanted to see it replaced.

But, whereas Trump’s statements often fail to withstand inspection when examined individually, analyzing a group of them together can sometimes provide valuable insights into his mind-set, which, at this time, appears to be even more addled than usual. The interview that Trump gave on Wednesday to three reporters from the Times offers us that opportunity.

A partial transcript of the interview, which the Times posted online, shows him eager to impress his interlocutors despite the fact that they work for a publication he has many times described as “failing” and “fake news.” He boasted about the response he received to the speech he recently gave in Poland, and how much the French President, Emmanuel Macron, likes him. (“He’s a great guy. Smart. Strong. Loves holding my hand.”)

At one point, Trump even played the role of amateur historian, pointing out how the armies of Napoleon and Hitler came to grief in the Russian winter, and adding that Napoleon “didn’t go to Russia that night because he had extracurricular activities, and they froze to death.”

That claim might be dubbed “fake history,” but it wouldn’t do to dwell on it because the interview also covered many more consequential subjects, including the Russia investigation and the now infamous meeting that his son, Donald Trump, Jr., arranged at Trump Tower last June. The overwhelming impression from the transcript is of a President who considers himself above the law, and who believes himself to be, through no fault of his own, besieged by internal and external enemies, particularly in the Justice Department and the F.B.I. As he put it at one point, “I have headaches, that’s what I have, I have headaches.”

As usual, Trump reserved some of his vitriol for James Comey, the man he fired as F.B.I. director. He repeated his unfounded claim that Comey leaked classified information, and accused him of lying to Congress. He also claimed that Comey had been looking for “leverage” when he warned Trump in January about an opposition-research dossier that contained salacious allegations about the President. (How would this be leverage? It is unwise to follow Trump’s logic too closely.)

The big news “get” in the interview was confirmation of a story that’s been going around Washington for months: Trump blames many of his woes on one of his own key lieutenants, Jeff Sessions, the Attorney General, who recused himself from overseeing the Russia investigation.

TRUMP: So Jeff Sessions takes the job, gets into the job, recuses himself. I then have—which, frankly, I think is very unfair to the president. How do you take a job and then recuse yourself? If he would have recused himself before the job, I would have said, “Thanks, Jeff, but I can’t, you know, I’m not going to take you.”

Although Trump doesn’t say it straight out, this transcript makes it clear that he thinks that Sessions, despite all the questions he was facing about his own contacts with the Russian Ambassador, should have refused to recuse himself from the investigation and protected the White House as the Russia investigation proceeded. Instead, Sessions failed him, with consequences that Trump immediately went on to detail.

TRUMP: It’s extremely unfair, and that’s a mild word, to the president. So he recuses himself. I then end up with a second man, who’s a deputy.

HABERMAN: Rosenstein.

TRUMP: Who is he? And Jeff hardly knew. He’s from Baltimore.

Actually, Rod Rosenstein, the deputy Attorney General, grew up in Pennsylvania. He did serve for twelve years as the U.S. Attorney for a district encompassing Baltimore, a city that Trump views as a Democratic swamp. And it was Rosenstein, with Sessions recused, who appointed Robert Mueller as a special counsel to investigate the alleged ties between Trump’s campaign and Russia. Trump also considers this appointment to have been unnecessary. “I have done nothing wrong,” he said. “A special counsel should never have been appointed in this case.”

Of course, Rosenstein also did Trump a favor earlier on in his Administration: he submitted a letter to Sessions saying that James Comey should be replaced as F.B.I. director because of his mishandling of the agency’s investigation into Hillary Clinton’s e-mails. In the interview, Trump concedes as much, saying, “O.K., he gives me a letter about Comey . . . and it certainly didn’t hurt to have the letter.”

But in Trump’s mind it is clear that that incident was ancient history, and Rosenstein is now part of a cabal of Washington insiders—officials, prosecutors, and investigators—who are out to get him, regardless of his innocence. In addition to Rosenstein, these insiders include Mueller, whom he accused of having undisclosed conflicts of interest, and Andrew McCabe, the deputy director of the F.B.I., whose wife, Jill, ran as a Democrat for a seat in the Virginia state Senate in 2015.

To Trump, who views everything through a lens of self-interest, there are no matters of legitimate public interest at stake in the Russia story; no public-spirited officials trying to fulfill their duty to the public; no duty on his part to respect the need for distance between the White House and the Justice Department when it comes to matters having to do with the President. It is all just a political racket, and he is the one getting screwed.

In truth, of course, Trump has himself to blame for Mueller’s appointment. By going ahead and firing Comey, Trump prompted Comey to leak incriminating details about their meetings. And that left Rosenstein little choice but to set up an investigation that was independent of the Justice Department.

Practically everybody in Washington agrees that Trump made a monumental error in firing Comey. But when one of the Timesreporters raised this possibility, Trump, characteristically, refused to admit it, saying, merely, “I think I did a great thing for the American people.”

Another problem with Trump’s narrative is that significant new information keeps emerging about links between Russia and his campaign, including the now infamous sitdown that Trump, Jr., had with a Russian lawyer. When the Times reporters pressed him on this, Trump restated his position: it was a routine meeting, and he wasn’t told about it at the time. But he also made a new point—new to me, anyway—arguing that, by last June, when the meeting took place, he didn’t even need any more dirt to hurl at Clinton: he already had plenty.

“There wasn’t much I could say about Hillary Clinton that was worse than what I was already saying,” he said. “I was talking about, she deleted and bleached, which nobody does because of the cost . . . 33,000 emails. I talked about the back of the plane, I talked about the uranium deal, I talked about the speech that Russia gave Clinton — $500,000 while she was secretary of state . . . honestly, Peter, I mean, unless somebody said that she shot somebody in the back, there wasn’t much I could add to my repertoire.”

You have to give points for creativity, I suppose. Like many con men, Trump never lacks a defense. But what he said in the interview was directly contradicted by his own words on July 27, 2016, just weeks after the Trump Tower meeting, when he publicly urged the Kremlin to hack Clinton’s e-mail, saying, “Russia, if you’re listening, I hope you’re able to find the thirty thousand e-mails that are missing.”

It is a pity the Times reporters didn’t present this quote to Trump. No doubt, he would have come up with another bogus explanation. He always does. At some point, though, as the Russia investigation gets ever closer to him, he will almost certainly have to answer questions under oath, and there is no knowing how he might react. At the end of the interview, one of the reporters asked Trump if he would fire Mueller if his investigation “went outside of certain parameters.” Trump’s answer was instructive: “ I can’t answer that question because I don’t think it’s going to happen.”