Magician Makes Morals Clause Disappear in $2.6 Million Arbitration Win

The Illusionists Production Still - H 2014
Courtesy of Boneau Bryan Brown

The Illusionists Production Still - H 2014

The last we checked in with Brett Daniels, the co-creator of The Illusionists had survived a wild trip to Venezuela and had just filed a lawsuit in federal court aimed at wringing money from his former partner from the biggest-selling magic show in Broadway history. Now, a couple years later, the magician has overcome some scandalous allegations to win $2.6 million in arbitration. He's now fighting to protect the award — and his chief adversary is being represented by a notable attorney caught up in the Stormy Daniels fight.

But let's back up.

In 2010, Daniels got together with Simon Painter, a promoter of live events and the former creative producer at International Special Attractions, Ltd. The two began discussing the concept of a live ensemble magic show featuring the best magicians and illusionists in the world. Eventually, this resulted in The Illusionists, which played to sold-out shows around the world and gathered interest as a TV special.

Then, something happened.

Daniels alleged that he was forced by his partner to Venezuela for a show, but that the performance never occurred. Instead, he says that the government seized stage equipment and kept all show assets under armed guard. Daniels alleged that Painter had "plotted" to send everyone in the cast home except for him. Experiencing severe illness, Daniels continued, he only procured a plane ticket out of Venezuela after threatening legal action. Once out of the country, Daniels alleged that Painter wanted to cut him from the show and deny him contractual promises of 10 percent of the act fee budget. The magician also claimed that Painter was misappropriating his copyrighted illusions.

Of course, there's often more to a story — and once Painter successfully pushed the case into arbitration, another tale emerged.

According to testimony submitted by Painter's side, Daniels' behavior on tour included thrown water bottles, shouted profanities, sexual advances on a crewmember and others, and even a death threat against Painter.

Both men accused the other of breaching contract.

Daniels not only stood up for his 10 percent fee under a Creator Agreement, but also took issue with subsequent magic shows developed by Painter, including The Illusionists 2.0 The Next Generation of Magic; The Illusionists 1903: The Golden Age of Magic; and The Illusionists: Live on Broadway. He argued these shows were "variations" under his contract, and while he withdrew his copyright claims, he demanded a 10 percent cut for these shows as well.

As for Painter, he took issue with Daniels' follow-up act in The Revollusionists, alleging this production violated his own intellectual property rights. He also argued that Daniels had run afoul of a "Conduct and Behavior" clause in his Performance Agreement that stated, "The Artist shall at all times behave in a professional and ethical manner and adhere to the directions given to them in relation to the Production and shall do nothing, which is likely to bring the Artist, the Management, the Production or fellow Artists into disrepute or adversely affect the harmonious working equilibrium of the Production or the Company."

In March, Robert O'Brien, the arbitrator in the dispute, largely found in favor of Daniels.

He ruled that the Creator Agreement was a valid contract and that Daniels performed all requirements to entitle him to his 10 percent fee. He further concluded that the sequels to The Illusionists were covered by the agreement and that there was no requirement that Daniels contribute to those shows in order to collect.

As to the morals clause, O'Brien ruled that Painter hadn't established that this provision in the Performance Agreement was incorporated into the Creator Agreement, and, moreover, while Daniels behavior "may very well have been reprehensible and unprofessional," Painter hadn't sufficiently alleged a breach.

"The Painter Parties contend that they are entitled to $139,345 in damages for Daniels’ breach of the Performance Agreements... including without limitation throwing chairs, bottles, and other objects, yelling profanities, slamming doors, making walls collapse, knocking over tables of food, being repeatedly late for shows because he was sleeping and instructed his assistants not to wake him up, repeated sexual harassment against cast/crew and their partners, and death threats against Simon Painter," the arbitrator wrote. "The Painter Parties, however, have not established that they suffered any damages as a result of Daniels’ alleged breach of the Performance Agreements."

O'Brien added that The Revollusionists didn't violate trademarks and trade dress infringement because of a lack of evidence establishing likelihood of confusion among consumers.

But it's another aspect of the arbitration award that has Painter waving an angry wand.

Painter is represented by Charles Harder, the attorney who in a separate case is handling President Donald Trump's defense of Stormy Daniels' lawsuit over a "hush agreement." There, Harder is helping Trump get the dispute into arbitration.

In the Illusionists dispute, on the other hand, he argues that what the arbitrator decided must be vacated because O'Brien "manifestly disregarded the law and/or acted completely irrationally."

Specifically, Harder takes issue with how Daniels is getting 10 percent of the salaries for each of the magicians whose services were procured for the Illusionists. Daniels had discovered and recruited many of these magicians to perform and in emails had called himself an "agent." Harder argues this is an undisputed violation of California's Talent Agencies Act, which forbids the unlicensed procuring of work for a client, with the penalty sometimes becoming a void of the agreements in question.

O'Brien didn't think much of the claim, finding that "the TAA does not apply to the Creator Agreement because Daniels was acting on behalf of the Painter Parties and the Show, not the performers (talent). In other words, Daniels functioned in a role similar to a casting director for the Show, and, therefore, he did not need to be licensed under the TAA when recruiting and booking the Show’s talent."

But Daniels wasn't an employee, contends Harder, but rather a colleague of those magicians he submitted to the production. What's more, Harder adds that the magicians were the ones paying Daniels.

The motion to vacate also argues that the arbitrator's award of future damages disregarded the law and that the arbitrator couldn't impose liability on Painter as only his affiliated production companies were party to the contract.

The case is now in the magical hands of U.S. District Court Judge Ronald Lew.

Here's the arbitration award as well as the motion to vacate.