January 14, 2013 8:33am PT by Eriq Gardner
Trial Alert! Warner Bros. to Square Off Against 'Dukes of Hazzard' Sheriff (Exclusive)
It's been 30 years since The Dukes of Hazzard reached its zenith of popularity as a CBS television series. Now, 27 years after the adventures of the Duke boys, rolling around the South in their customized 1969 Dodge, went off the air, a North Carolina jury is about to consider the possibility that producers stiffed one of the show's actors of money from merchandising.
On Feb. 11, Warner Bros. will be inside a federal courtroom, defending a suit brought by James Best, now 86, who played bumbling Sheriff Rosco P. Coltrane in the series.
The trial will happen after U.S. District Judge Richard Voorhees made a summary judgment order on Jan. 4 that dismissed most of Best's claims, but rather extraordinarily, allowed to survive two claims over something that allegedly happened in 1981 -- when the series was the second-highest-rated show on television and the franchise was raking in dollar after dollar in merchandising tie-ins.
Best brought this lawsuit in August 2011.
The actor didn't get any royalty reports and payments from 1992 to 2009, and once he did, he was upset to learn that licensed products including beach towels, kitchen items, trash cans, electronics, timepieces, sleepwear, coloring books, shoes, bikes and cars incorporating his likeness amounted to less than $10 million. In his lawsuit, Best demanded a detailed accounting and also raised the issue of possible money due from spinoffs of the TV series. (The show was remade as a film in 2005, with his character played by M.C. Gainey.) He also asserted that Warner Bros. had misappropriated his name and image in its exploitation of the Dukes of Hazzard brand.
Earlier this month, Voorhees trimmed the claims.
Best can't allege that Warners breached its fiduciary duties toward him because he can't prove the studio had a fiduciary duty. The actor can't allege fraud and conversion because he hasn't asserted anything beyond a possible breach of contractual obligations. And he can't allege misappropriation of his publicity rights because he contractually consented to the use of his name and likeness.
Best's other claims of unjust enrichment and unfair trade practices also have been dismissed. Finally, a judge won't allow him to seek punitive damages.
All that said, the remaining claims going before a jury might be the most shocking.
The litigation turned up Warners' annual report of 1981, which reported that "products using a Dukes of Hazzard license achieved retail sales of $190 million in 1981, making the show one of the most valuable for licensing in television history."
On the other hand, in 1982, Best had his accountants conduct an audit of Best's merchandising royalties from the inception of the show until the end of 1981. The report indicated that during this period, "the total of all earned royalties for Dukes of Hazzard-related licensed products was $4,600,000."
Quite a discrepancy, and Best's attorney Charles Oswald now presents what happened more than three decades ago by saying in recent court papers that "for the first few years [of the series], Defendants provided James Best with quarterly summary reports employing a mixed bag of confusing and misleading jargon such as 'Reportable Gross Receipts' and 'Net Receipts After Distribution Fee' and 'Net Receipts (Loss) After Distribution Fee and Expenses' and 'Net Receipts (Deficit)', impossibly reporting the same amount under each heading, which James Best innocently understood to represent the truth."
So the financially unsavvy actor, who in court papers describes himself as an "octogenarian beloved by millions of devoted fans worldwide," will get his day in court over Hollywood accounting. "Plaintiff's breach of contract claim survives only as to the royalties owed in 1981," wrote the judge in his summary judgment ruling.
And why isn't this claim over something that happened three decades ago barred by statue of limitations?
"The Court will not presume Plaintiff's omniscience and finds that the alleged underreporting was sufficiently difficult to detect as to merit the application of the delayed discovery rule," Voorhees ruled. "Moreover, in light of Plaintiff's request for the 1982 audit, the Court is persuaded that reasonable minds could find as sufficient Plaintiff's diligence in discovering Defendants' breach of contract. Therefore, whether Plaintiff exercised reasonable diligence under the circumstances is a question of fact left for the jury."
According to Best's complaint, he was entitled to receive 5 percent of merchandising revenue from products that featured his identity, or 2.5 percent of total revenue for merchandise when other castmembers were incorporated. If it's true that the series was responsible for $190 million in merchandise by 1981, that's potentially a big sum. Some involved in the case believe that damages won't be nearly so significant. The judge also is allowing Best to pursue a claim that Warners breached an implied promise of good faith and fair dealing by frustrating his attempts to gain what he was allegedly owed.
The jury trial was scheduled to begin last week upon the judge's decision on summary judgment, but at the last second, it was postponed after the mother of an important Warners executive scheduled to testify suffered a medical emergency. The Dukes of Hazzard trial is now set for Feb. 11.
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