U.S. Tennis Association's Lawsuit Over 'Venus and Serena' Doc Will Play On

A New York judge says that the USTA has plausibly alleged a filmmaker's broken promise to gain access to the U.S. Open.

This past summer, the United States Tennis Association brought a lawsuit against filmmakers of the documentary Venus and Serena, which premiered in theaters in May and was showcased on Showtime in the weeks heading up to the U.S. Open.

The lawsuit was widely reported to concern unlicensed clips of Venus and Serena Williams from the tennis championship, but as we pointed out in our original report about the litigation, the copyright claims weren't as interesting as some of the lawsuit's other claims, which had the potential of impacting news access to live sporting competitions. Indeed, in the months after the USTA filed its lawsuit in New York federal court against Maiken Baird and Michelle Major, the plaintiff backed off on demanding statutory damages for copyright infringement, leaving the core issue in the lawsuit the promises that the filmmakers made in attaining access to film at the 2011 event.

Last week, U.S. District Judge Nelson Roman addressed the USTA's lawsuit, dismissing the tennis association's unjust enrichment claim but allowing a claim for promissory estoppel to survive.

To get there, the judge looked at what the USTA was alleging.

Baird, Major and VSW Productions approached the USTA in July of 2011. They were in the midst of filming their documentary on the two tennis superstars and wished to include in their film both archival footage as well as off-court, behind-the-scenes footage at the 2011 event.

Major sought accreditation for a "small film crew of three or four, plus two producers" and also stated in an email, "We are entirely willing to agree to film only where and what your organization will allow."

The USTA responded it was willing to work with the filmmakers and advised them that in accordance with its policies, footage would have to be recorded by a third-party film crew and that footage from the event would be subject to a "standard footage licensing agreement and then applicable 'rate card.'"

The filmmakers agreed to the arrangement, but prior to that year's U.S. Open, the USTA's videographer became unavailable, and as a concession, the tennis association allowed the defendants' film crew access to film behind-the-scenes footage. Following the competition, the two sides continued to negotiate the terms of a license. Ultimately, no agreement was reached, but the filmmakers used footage anyway. The USTA filed a lawsuit, and the filmmakers began making noise in the press that the USTA was more concerned about a 2009 Serena tirade and was intent on censoring the film.

But as an organization enjoying billion-dollar TV rights deals, the USTA contended that there was more at stake.

"It cannot be disputed that the USTA, as the organizer of the U.S. Open, enjoys the right to license to others -- for a fee -- the ability to record and broadcast U.S. Open footage," said the plaintiff in legal papers. "The USTA has the right to determine who may be permitted access to the [National Tennis Center] for the purposes of filming there. Thus, the USTA has every right to charge Defendants a fee in connection with both their access to the NTC and their subsequent use of the NTC Footage, regardless of Defendants' copyrights."

The filmmakers responded by accusing the USTA of "attempting to change its theory of liability" from one of money over footage to one of money over access -- and doubted that the plaintiff could get there.

Judge Roman agrees in part, but disagrees in part.

In a ruling last week (read in full here), the judge says that the USTA's claim that the filmmakers were unjustly enriched from their unauthorized use of footage is equivalent to and thus preempted by federal copyright law. "Indeed, the rights Plaintiff seems intent on protecting in the unjust enrichment count involve the reproduction and adaptation of its copyrighted broadcasts," writes the judge.

On the other hand, Judge Roman won't toss a claim of promissory estoppel.

The judge says that "Plaintiff has alleged plausibly that Defendants made a clear and unambiguous promise: (1) that, at the beginning of the parties’ discussions, Defendants stated they were 'willing to film only where and what your organization will allow' and that (2) at some point during their negotiations before the 2011 U.S. Open began, Defendants thought they would need to seek a license for footage of 'Venus and Serena playing their matches with on-court sound (which we understand we will have to license).'”

Thus the lawsuit continues and will likely be focused on the USTA's alleged injury. The plaintiff is represented by Jeffrey Carton at Denlea & Carton. The defendants are represented by Toby Butterfield at Frankfurt Kurnit Klein & Selz.

E-mail: Eriq.Gardner@THR.com

Twitter: @eriqgardner