August 09, 2011 2:58am PT by Matthew Belloni
CBS Wins Dismissal of Key Part of 'NCIS' Spinoff Lawsuit (Exclusive)
CBS Studios has successfully knocked out a key claim in the high-profile breach-of-contract lawsuit brought by JAG and NCIS creator Donald Bellisario over profits from the spinoff NCIS: Los Angeles.
In a ruling issued Aug. 4 and obtained by The Hollywood Reporter, Los Angeles Superior Court Judge Gregory Alarcon dismisses with prejudice (meaning the claim can’t be re-filed) a portion of the lawsuit relating to Bellisario’s 2002 deal with CBS that covered his services on NCIS, the top-rated drama that immediately predated NCIS: Los Angeles.
As you’ll recall, Bellisario, 75, the fiery ex-Marine turned TV writer-producer who created JAG and its spinoff NCIS, sued CBS in April claiming he was denied the “first opportunity” to work on NCIS: LA or receive millions of dollars in payments from the hit spinoff. Bellisario’s lawsuit claims that his three separate deals with CBS Studios and its predecessor Paramount Television—signed in 1992, 2002 and 2006, respectively—give Bellisario the right to participate in a future spinoff or sequel, despite his being fired from NCIS in 2007.
CBS then filed a demurrer (a motion to dismiss parts of the lawsuit), arguing that Bellisario’s contracts only allowed him to be paid on JAG and NCIS, and that he had long been off the show when the decision to spin off the Chris O’Donnell and LL Cool J characters into NCIS: LA was made. Lawyers for CBS and Bellisario were in court June 29 arguing such esoteric topics as the nature of a spinoff and whether the fictional universe of a TV show can be considered a “character” for the purpose of contract interpretation.
But judge Alarcon doesn’t discuss the ultimate merits of the case in his nine-page ruling on the motion to dismiss. Instead, he dismisses the claim on the 2002 deal because it wasn’t filed in time. Bellisario’s 2002 deal included an 18-month statute of limitations on bringing a lawsuit. CBS announced at its upfront presentation in May 2009 that NCIS: Los Angeles would be launching that fall. “Any reasonable person with [Bellisario’s] experience in the entertainment industry should have been alerted to the possibility that NCIS: LA could be a spin-off of NCIS and that [Bellisario] had not been offered his ‘first opportunity’ rights under the 2002 agreement,” the judge writes. So his cause of action under the 2002 deal arose in May 2009 and was extinguished in November 2010, well before he filed suit in April.
It’s not a total win for CBS. The judge is allowing big chunks of Bellisario’s case to proceed, including his theory that NCIS: LA might be a spin-off of JAG under the 1992 deal because it takes place in the same fictional military-justice world that Bellisario created for that show. The lawsuit goes into much detail about how in the television business, as seen with the Law & Order and CSI franchises, multiple shows can grow out of one universe, and the setting for a show can become a “character” itself.
“Via allegations of industry custom and usage, [Bellisario] has highlighted a latent ambiguity in the definition of the terms ‘spin-off’ and ‘character’ in the 1992 agreement and has sufficiently pled alternative definitions of the terms,” the judge rules, allowing Bellisario to pursue breach of contract claims based on the 1992 deal for JAG.
The court also refuses to dismiss claims under the 2006 agreement because Bellisario has successfully pleaded that the term “sole written-by credit” can mean different things in the entertainment business. That claim applies to whether Bellisario wrote the NCIS pilot himself , which is important in determining whether he is entitled to rights in the spinoff.
We’ve reached out to CBS and Bellisario attorneys for comment and will update with any reaction to the ruling.