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This year, the Writers Guild of America quietly prevailed in establishing that Hogan’s Heroes creators Bernard Fein and Albert Ruddy were entitled to “separated rights” in the story of a German prisoner-of-war camp during World War II. As a result of an arbitrator’s March decision, Ruddy has reportedly been working on a feature film version of the TV series, which ran from 1965 to 1971 on CBS.
But Rysher Entertainment, which is a successor to Bing Cosby Productions, the producer of the original series, continues to challenge the arbitrator’s ruling. On Tuesday, after losing again three weeks ago at a California federal court, the company made an appeal up to the 9th Circuit Court of Appeals in a dispute that could hold implications for writers throughout Hollywood.
STORY: WGA Fights Over Movie Rights to ‘Hogan’s Heroes’
In 1963, Fein and Ruddy assigned rights to their creation to Bing Crosby Productions and in the following year, the duo entered into an employment agreement with BCP whereby they got $4,500, a bonus payment of $500 for the broadcast of the pilot, and 10 percent of the the show’s net profits.
Fein died in 1980, but his widow along with Ruddy later asserted that they had held onto separated rights, which under the terms of the intricate guild agreement, means that credited TV writers reserve many literary rights (motion picture, theatrical, etc.) even when the producers hold the copyright.
The case went to arbitration after some fussing about whether it belonged there.
This past March, WGA emerged as the winner as an arbitrator granted the Guild’s request for a declaration that Ruddy and Fein possessed separated rights in Hogan’s Heroes.
But that didn’t end the dispute as Rysher then filed a motion in California federal court to vacate the award.
Round two of this battle concluded in a July 30 ruling by U.S. District Judge Stephen Wilson, who refused to overturn the arbitrator’s decision. (Judges typically are highly deferential to what happens in arbitration.)
According to the ruling (read here in full), Rysher argued that the arbitrator had exceeded his powers by awarding an “individualized remedy” to the writers in violation of the 1960 collective bargaining agreement (CBA), which states that “no determination or decision made by… arbitration, as herein provided, shall affect the rights of the Producer as against any writer nor the rights of any writer as against the Producer in relation to their rights as against each other.” (The current version of the CBA doesn’t contain this language.)
While it might be true that the CBA was then written so as to keep arbitration away from “individualized” disputes between producers and writers, importantly it was the WGA — the union for Ruddy and Fein — bringing arbitration over interpretation of the CBA. That, of course, is what’s customary: the guild regularly brings arbitrations over residuals, compensation, omission of credits and, sometimes, over separated rights.
“Although Article XIV generally forbids awards that affect the rights of writers against the Producer,” reasons Judge Wilson, “it openly contemplates that this rule is inapplicable where, as here, the producer’s conduct may form the basis of a dispute with both the writer and the union.”
Rysher also attempted to vacate the arbitrator’s decision on the basis that it was too indefinite because it failed to specify the scope of material covered by the separated rights. As examples, Rysher’s attorneys said that Ruddy and Fein’s contributions were limited to the pilot script, that the two writers didn’t create major characters in the series like Sergeant Schultz, nor did they even invent the title of the TV series. (Fein and Ruddy originally titled their creation just “Heroes.”)
But Judge Wilson rejects this argument as well.
“The award need not resolve all issues that might arise in subsequent litigation — it need only resolve the issues submitted to arbitration,” he writes, setting the stage for a lawsuit to come if Hogan’s Heroes actually gets made into a movie. In fact, Rysher attorney Craig Mariam tells THR that no matter what happens on appeal, “There is going to be follow up litigation to that end to determine which separated rights apply.”
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The judge also waived away Rysher’s arguments that the arbitrator dispensed his own brand of industrial justice and exhibited partiality. The production company pointed to omissions of the arbitrator like the failure to address Article II of the separated rights provision in the CBA, which dealt with a prerequisite that material must have been written through employment. Rysher also accused the arbitrator of ignoring certain evidence and failing to disclose that he had previously served as legal counsel to the Guild. (The prior service on behalf of the guild was 24 years earlier, and was followed by a period of employment as a studio labor counsel.) None of that was enough.
So this dispute now goes to the 9th Circuit. At stake could be whether writers of TV shows get the right to profit when movie studios develop films based on their original material. Mariam says the appellate review will be de novo, meaning a fresh analysis without prior assumptions, as Rysher challenges whether there should have been an arbitration in the first place, and if so, whether the arbitration was proper.
A Hogan’s Heroes film could be on the line. And as for what else, Mariam says, “We are displeased by the inherently biased nature of WGA arbitration.”
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