Bochco’s Got the Blues, and He’s Not Alone

“NYPD Blue” returns this week, culminating a mini-drama in which ABC contemplated its relocation to a different night, keeping the show on Tuesdays only after a widely reported blowup with producer Steven Bochco.

Yet while that crisis has been resolved, another behind-the-scenes drama continues, as Bochco remains embroiled in a legal tussle with 20th Century Fox--one of several recent lawsuits pitting studios against stars and producers, prompting the TV industry to ponder ways to stave off such lawsuits.

Bochco’s beef hinges on Fox’s sale of the program’s reruns to FX, a cable network owned by Fox parent News Corp. Contending the studio arranged a “sweetheart deal” between its two divisions, the producer claims he was deprived of fair-market value and, thus, millions of dollars in series profits.

Such complaints have become common, fueled by a concentration of the media into a few vast companies that not only broadcast programs but also produce them, distribute the reruns and operate secondary channels that can bid for those rights. This “vertical integration”--hastened in the last five years by government deregulation and a wave of mergers--has made stars and producers doubt whether programs are being shopped to the highest bidder, shortchanging them in the process.

“The X-Files” star David Duchovny has lodged similar allegations regarding that show, while Fox reached an out-of-court settlement in another action brought by “MASH’s” Alan Alda. A lawsuit related to “Home Improvement” also was quietly settled after producers argued Disney didn’t generate a fair price for the comedy from ABC, which the studio owns.

Faced with this barrage of high-profile litigation, some in the industry are contemplating changes to better define the financial rights of actors, writers and producers.

A Fox contract reviewed by The Times, for example, specifies the studio can sell programs to “affiliated companies” and producers “expressly waive any right to object to such distribution . . . or assert any claim that Fox should have offered the applicable rights to unaffiliated third parties.”

The agreement also seeks to limit talent’s legal options, saying disputes must be arbitrated and the “sole remedy” against Fox will be money damages--trying to prevent the massive punitive damage claims often connected with such suits.

A Fox spokesman said the language cited has been in use for more than a year. Even so, similar documents show the tortured verbiage studios currently use in an effort to protect themselves. These include a Disney Channel contract that almost comically states its terminology “is not intended to correspond in any way to generally accepted accounting principles.”

Confounding as this might sound, the basic issue involves how studios can exploit and control entertainment content. In that sense, such new avenues as cable and the Internet have put them at odds--not only with stars and writers--but also TV fans, who howled in protest as Fox shut down unauthorized Web sites related to “The X-Files,” “The Simpsons” and “Buffy the Vampire Slayer.”

Moreover, each technological advancement--such as the possibility of launching new digital TV channels--only adds to the confusion as leaders sort out how to navigate this reconfigured landscape.

Prominent entertainment attorneys say their challenge involves drafting rules for a constantly changing game, as studios--which can be not only producers but also the owners of broadcast and cable networks--seek to wring profit from their programming on multiple levels.

“It’s coming up more and more frequently, because more studios are affiliated with networks and other means of distribution,” said attorney Bert Fields, who represented Jeffrey Katzenberg in his lawsuit against Disney.

“This is going to be even more of an issue going forward,” added one entertainment lawyer, preferring not to be identified, he said, because, “We’re right in the middle of all this.”

The consensus is those affected most are unproven stars and writers who have yet to deliver a major success, limiting their ability to fully share in the enormous paydays they once might have reaped from their work.

In an interview a few months ago, Bochco--one of those rare producers associated with multiple hits--said creative talent, no matter how well known, has every right to guard its interests in this environment.

“It’s a once-in-a-lifetime opportunity for most people,” he said shortly after the suit was filed. “First, you’ve got to have a hit, and most people don’t. Second, you have to have a significant profit participation . . . or you can end up spending more [on lawyers] than you ever get in profits.”

Talent representatives say they now anticipate that companies will try to keep their assets in the family where possible. Fox has placed several of its programs on FX to make the channel more attractive to cable operators, while Warner Bros.’ “ER,” not surprisingly, landed on TNT, another Time Warner holding.

“When you walk into the room, you know that Fox is going to sell to FX, Disney is going to sell to ABC, and so on and so on,” said attorney Ken Ziffren, whose clients include several top TV writer-producers.

Lawyers cite various ways to try to ensure that studios pay a fair price even when, in essence, selling programs to themselves. These can include language saying series creators get to approve the sale, or even providing them the opportunity to seek a buyer willing to pay more.

Still, studios will strike such deals only with talent that possesses enormous bargaining power--names like Lucas and Spielberg. “We’re talking about just a handful of people,” Ziffren said.

In short, how contracts are written will ultimately depend on the clout of who’s at the table. So mega-stars will still be able to negotiate relatively generous terms while unknowns will probably have to sign more onerous deals.

At the same time, everyone will continue to eye studios warily and hope they have a good lawyer.

“There really isn’t any foolproof way to eliminate this other than an extreme clause [in the contract],” Fields noted in regard to disputes over studio self-dealing. “So you’re going to get some clause in the middle, and in the middle, you’re going to have litigation.”