Dough!

Be careful what you wish for.

That was the trite phrase that popped into my mind the other day after seeing a press release from Harry Shearer about the negotiations with the cast of The Simpsons.

Shearer, one of the cast members, was offering to take a pay cut in exchange for a share of profits from the TV series.

Dough!

I might not have reacted that way had I not also over the past week seen three separate lawsuits over profits from seemingly valuable entertainment enterprises - profits that seemed to vanish from the books of the people who were supposed to keep track.

Yes, I know this is standard for Hollywood.

But why?

Why do creative types continue to agree to participate in profits? Do they relish the thought of litigation in their futures? Shouldn't there be an assumption of risk defense for production companies?

If you know studios and record companies and merchandisers aren't equipped to produce profits - at least not for you - should you come crying to court later over a deal you shouldn't have made in the first place?

Let's look at some of the most recent examples.

This is from a complaint filed by The Rick Nelson Company, LLC against Capitol Records: "On information and belief, Capitol is in possession of $100 million-$250 million in so-called 'unmatched income' - large caches of income that Capitol claims it cannot link to any particular artist."

So, naturally, at least if the lawsuit is to be believed, the record company is keeping the money. How could it be expected to keep track of who is owed what when there are so many songs out there and so many artists?

You might think that something like, oh, a computer could sort that out, but bear in mind that these are old contracts. Computers didn't exist (or couldn't do much) when the contracts were signed. There was no reason to anticipate that accounting would be easy.

The lawsuit even admits that times change: "Royalty provisions that existed in older contracts ... anticipated costs (such as breakage of physical records or physical distribution) that simply do not apply to digital sales of the same music."

And clearly they didn't anticipate millions in profits.

I'm guessing most of these contracts didn't anticipate cultural significance either. This is from a lawsuit filed on behalf of David Cassidy:

"The letter falsely indicated that Mr. Cassidy was only owed monies in relation to the sale of a thermos.... Interestingly, the thermos was inside the number #1 (sic) best selling lunchbox of its time. This iconic Partridge Family lunchbox now has its rightful place in our country's Smithsonian Institute."

Probably near a Simpsons lunchbox.

Your lunch may be a witness to history.

Here's another quote from a suit filed the other day that's part of a long-running dispute over profits from the film The English Patient:

"(I)n a classic example of bad faith and self-dealing, Miramax also wrongfully charged The English Patient for expenses in excess of $2 million which expenses were not intended to promote and advertise the picture in its theatrical release, but rather were intended and used to promote and congratulate Miramax as the distributor of The English Patient in order to raise the company's profile and 'cachet' as a distributor of high quality motion pictures."

Distributors rarely get the critical acclaim they deserve.

Which brings us to the key philosophical question here: who deserves and creates more wealth - the artist or the marketers?

Now think of all the lousy movies and TV shows (and everything else) that have made lots of money and have rightful places in the Smithsonian.

Yes, it's depressing....

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