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George Litto, the talent agent who represented Leonard Freeman, the writer-producer of the original Hawaii Five-O series, will have to go to trial in February to determine whether he has been unfairly cut out of financial participation from the remade CBS series. The attorney for Litto had hoped to score an early knockout punch at a summary judgment hearing on Wednesday, but a Los Angeles Superior Court has decided that an issue of contractual interpretation is best left for the jury.
The plaintiff brought the $100 million lawsuit in May, 2012, and detailed the long, complicated backstory of Hawaii Five-O.
After setting up the show for CBS in the late 1960s, Freeman died in 1974 of heart problems. That year, Litto negotiated an amendment to the contract on behalf of Freeman’s widow and a trust. The terms of the agreement were said to be favorable for the estate as it shifted responsibility of production to CBS but didn’t allow the network to recoup production overages.
The original Hawaii Five-O ended its run in 1980, but there continued to be interest in reviving it. According to Litto, CBS decided it wanted to make a movie version of the series. The parties fought in federal court and in arbitration over this possibility. In 1998, an arbitrator ruled against CBS and held that Freeman’s heirs were entitled to separation of rights and control of reserved rights in the Hawaii Five-O property, including the possibility of a motion picture, stage play and merchandising.
Two years before an arbitrator’s decision, Litto and Freeman’s widow came to an agreement. The lawsuit said the purpose of the agreement was to “work together and jointly exploit and equally share revenues” from future productions of Hawaii Five-O.
When CBS greenlit a reboot of Hawaii Five-O, it did so by striking an agreement with the Freeman trust, but not the entity that was set up between Freeman and Litto. In the lawsuit, Litto claims tens of millions of dollars in damages by Freeman’s renegotiating the old deal. The lawsuit also claims that the trust had no authority to make this deal.
Represented by attorney Henry Gradstein, Litto moved for summary judgment on the basis that the operating agreement provided that all revenues generated from new TV productions of the series are owned and payable to the company jointly controlled by both Litto and Freeman.
But the judge said that it had yet to be established that the company set up in the mid-90s to exploit Hawaii Five-O was for TV income or money from other spin-offs.
Litto submitted extrinsic evidence to support a reading of the deal to comprise TV income. Among the evidence submitted were early drafts of the operating agreement that only entitled the agent to compensation from TV production when Litto’s company was “involved in the production.”
The judge said that the offered evidence meant Litto had met its initial burden of demonstrating he was entitled to declaratory relief. But after examining the defendants’ arguments including that CBS had the right to produce episodes of the series in perpetuity, definitions offered in a WGA Basic Agreement, and more, the judge concludes there are triable issues of material fact “as to whether the parties intended that the ‘right to any revenues from any new television productions’ were those which the Trusts held and were being given as additional consideration for Litto’s efforts to resolve the dispute with CBS over the film rights.”
As a result, a jury will settle the question at a 10-day trial currently scheduled to begin February 26. The lawsuit is not only against the Freeman trusts, but also against CBS, which was pulled back into the case and denied its own summary judgment earlier this year. Lito asserts that CBS has known that money for its latest incarnation of Hawaii Five-O is being paid to the wrong rights holder. The defendants are being represented by Michael Plonsker.
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