Why Wayne Is The Bad Guy In His Own Movie: Wayne's World And Morality Clauses

Wayne’s World premiered 25 years ago this month and remains a high water mark in modern comedy filmmaking, which is why I guess everyone’s been talking about it lately. I love the movie for a lot of reasons: it’s a fully realized concept, unlike a lot of SNL spinoff films, the comedy holds up on repeat viewings, and it clocks in at a lean hour and a half (I don’t know about you but I HATE the modern trend of bloated two and a half hour comedies… if you can’t say it in 90 minutes or less, you can’t say it).

To celebrate its silver anniversary, HBO has been playing it a bunch, so I’ve had the chance to rewatch it. And while the movie is good as ever, something stuck in my craw this time. Wayne (Mike Myers) is kind of the bad guy in his own film. And the skeezy TV producer Benjamin (Rob Lowe) who the film tells us is the villain is actually on the right side of things. And it’s all because of a contract dispute.

Great. Another movie ruined by being a lawyer.

So anyway, a big plot point in the film is Wayne’s reluctance to giving his show’s sponsor, Noah Vanderhoff (Brian Doyle Murray), a weekly guest spot/interview, a concession Wayne agreed to in his contract. Late in the second act, Benjamin and Wayne butt heads over this issue in what is probably one of the best modern comedy bits in recent history:

Eventually, Wayne agrees to conduct the interview with Vanderhoff, but not before writing offensive remarks on his interview cards, humiliating the sponsor on live TV.  Needless to say, Benjamin isn't happy.

Benjamin: You've publicly humiliated the sponsor.

Wayne: Yeah!

Benjamin: You're fired.

Wayne: Fired? For that? Sh'yeah! Right! I'm out of here, and I'm taking my show with me.

Benjamin: We own the show.

Wayne: Aw, bite me.

Dammit Wayne! This is why you always read your contracts! And not just play-read like you did in that scene where Garth talks about sentient baby tongues.

So there’s two things going on here. First, despite Wayne’s incredulity at losing the show, it’s fairly common for a television network to buy the rights to a show they’re producing. If the creator has a lot of clout, the network will sometimes agree to license the rights instead, allowing the creator to retain ownership. But that’s exceedingly rare these days. They’d rather own it outright so they can control the property and all its ancillary revenue streams like VOD, streaming, distribution, merchandising, and spinoffs. The way the film plays it, it feels unfair (and maybe it is - how would Wayne know that giving up the rights to Wayne’s World is typical? It certainly seems that Benjamin took advantage of his inexperience), but it’s the way the business works. Wayne and Garth would’ve been smart to get a lawyer to look over the contract before signing it.

The second is whether Wayne actually breached his contract, warranting his dismissal. This is a hard call since we haven’t read his contract, but we can make some educated guesses based on the average talent agreement. While Wayne fought Benjamin on the Vanderhoff thing, he did eventually relent and conduct the interview. No one can deny that. So what gave Benjamin cause to fire him? My guess is a morality clause.

A morality clause is a provision found in certain types of employment contracts that forbids the employee from engaging in activities that may reflect badly on the employer. A violation of the clause could result in the contract being terminated. In essence, if you act like a dick and embarrass your employer, you could get fired. Word on the street was that Brian Williams was nearly let go from NBC for lying about past news reports (before being shuffled over to MSNBC) due to a morality clause in his agreement. Allegedly, that clause stated:

“If artist commits any act or becomes involved in any situation, or occurrence, which brings artist into public disrepute, contempt, scandal or ridicule, or which justifiably shocks, insults or offends a significant portion of the community, or if publicity is given to any such conduct . . . company shall have the right to terminate.”

In the movie industry, clauses like these go way back to the 1920's and 30's when the studio system wanted to exert control over movie stars’ ability to socialize, marry, and have babies, any of which - in the wrong light - could bring shame to the studio and cause box office losses. How can that be legal, you might ask? Well, it is because most stuff you contract to do is legal (outside of sex and crime), although hard to enforce and very rarely litigated on. I ran a case law search and turned up almost nothing useful for this blog post.

Knowing what kind of person Wayne was, it was likely that Benjamin would’ve inserted a morality clause into his contract. Now I know I said Wayne was wrong up top, but I’m also not saying that Benjamin is secretly the protagonist of the film. He’s definitely a sleaze ball. He manipulated Vanderhoff into sponsoring a show he wasn’t interested in, he took advantage of Wayne’s naiveté about the TV industry and allowed him to sign a contract he didn’t fully understand, and even if he wasn’t explicitly making moves on Cassandra (Tia Carrere), he did know she was dating Wayne and was spending an awful lot of time cozying up to her. 

But when it comes to contracts, the law is pretty clear that Benjamin was in the right. Wayne bore the responsibility to read and understand his contract before he signed it. He then humiliated his bosses openly and brazenly. In other words, he made his choice. And it’s the choice of a new generation.

*Sips Pepsi*

Mmm! Delicious!

On Making A Good Faith Effort To Get Permisison

Whenever a prospective client tells me they want to use a pre-existing work of art but they couldn't find the artist to ask permission, my first question is, "how hard did you look?" Their responses tells me a lot about them. Is this someone who is genuinely trying but stumped? Or is this a person who isn't interested in doing some hard work? If you've spent any time reading this blog, you know I'm big on getting permission before using someone else's work. First, it's legally much safer for you than relying on fair use. Second, it's just good karma. This is one arena where I'm not an adherent of Grace Hopper's immortal quip, "It is better to beg forgiveness than to ask permission."

You don't want to get sued for copyright infringement, which is why you should always ask permission before using someone else's work. And a cursory effort isn't going to cut it. No, you need to make a "good faith effort." In the law, we generally define that as what a reasonable person would determine is a diligent effort to produce a desired result. In other words, you need to do more than a quick Google search before calling it quits. It's tempting to think that because access to the internet is so ubiquitous, everyone must be online and instantly reachable. Unfortunately that's just not the case. Sometimes artists are hard to find, which means you gotta do some real sleuthing. 

So what does a good faith effort look like in the real world?

1. You have to determine if the rights are still owned by anyone. Generally speaking, art made prior to 1923 is in the public domain and therefore owned by no one. But even if you suspect that's the case, do the research anyway. You don't want to be sued by the estate of a long-dead jazz musician just because you assumed his work was up for grabs.

This chart is a useful tool to get your mind oriented around the issue. You should also use as many research tools as you (and your wallet) feel comfortable with. Google is a good place to start but not the be-all/end-all. There are private copyright search companies you can hire. You can hire a lawyer. You can also do a search through the Copyright Office database (as well as the Writer's Guild if the work is written) to track down ownership over a specific piece of work.

I should note that these tools will only help you determine if a work of art has been registered or published. Any work that hasn't been will require some more creative investigating on your part, I'm afraid.

2. You have to get in touch with the owner. This is where things usually fall apart for many of the people who contact me. Unfortunately there's no guaranteed way to find someone, especially if they don't want to be found. Certainly, you can start with the tools I mentioned above, and if the work is registered somewhere, there's usually some contact information associated with it. But ultimately, you may just have to call around.

I once had a client try to get in touch with a reclusive painter who had virtually no online presence. But through an exhaustive Google search, the client found a gallery in New Mexico that was selling some of that artist's paintings and with a little prodding, got the gallery to put her in touch with the painter.

Sometimes artists have managers or agents and you have to make contact through them instead. Go online and see if you can drum up client lists for some of those agencies. Maybe some of the rights to the work have been sold or licensed to a third party. Contact them and see if they can put you in touch. Maybe the artist is giving a lecture at a local university. Go to the lecture and try to meet him or her in person.

There's a fine line obviously between stalking and diligence and I strongly recommend you hew towards the latter. I don't recommend going to the Whitepages and soliciting them at home since that's pretty creepy and they probably won't respond well to it. But a communiqué sent through appropriate professional channels is okay.

As you can see, there are a lot of options open to you. You might have to get creative, and periodically do a gutcheck to see if what you're doing violates social norms, but these are all strategies you should consider before giving up.

3. Lastly, when you do get in touch, be nice, be friendly, but be direct with your ask. Don't waste their time and don't overstay your welcome. Get what you want, IN WRITING, pay for it, and get to work. There's no guarantee they'll cooperate, but if you act like an entitled brat, that's a surefire way to guarantee they won't.

Ultimately you may not find the artist, or you may find them and get no response. At that point, proceeding with their work becomes a question of risk. Did you make enough of an effort? Does fair use apply to the way you want to use the work? Before you make a judgment call on either of those questions, talk to a lawyer first. Making a good faith effort to find the artist and ask permission can sometimes be hard work, but from my seat it's critical to keeping your karma good and your ass out of court.

When Rowling Met Galbraith: How An English Lawyer Broke The One Unbreakable Rule All Lawyers Must Follow

This past April, a former military police officer named Robert Galbraith released his debut novel, The Cuckoo's Calling to stellar reviews but terrible sales, selling only 1500 copies. As sales floundered, a British lawyer named Chris Gossage confided to his friend Judith Callegari that Galbraith wasn't a real person, but was in fact the pseudonym for J.K. Rowling, the most famous author in the world. Callegari then did what most of us would do when handed such a world-shattering piece of gossip - she blabbed to anyone who would listen, including a reporter. With the cat out of the bag, sales of Cuckoo skyrocketed to #1 on Amazon.

It's not hard to see why Rowling would do this. As wealthy and successful as Harry Potter made her, the pressure to rebel against typecasting must have been overwhelming. Following the release of Deathly Hallows in 2007, she sought to distance herself from the world of magic by writing a novel for an adult audience. The result was The Casual Vacancy, a thriller which sold like gangbusters, but was panned by critics. I imagine she took a great deal of satisfaction knowing that while Cuckoo wasn't popular when everyone thought Galbraith had written it (it's not like she needed the money), it found love from the very people who felt she could never write a book that wasn't aimed at children. She admitted as much on her website, saying that it was nice to be able to publish "without hype or expectation." So while Rowling was displeased with her identity being leaked, she had still proven her point.

Not everything worked out so well for Gossage though, a partner at the firm that represented Rowling. She sued the firm because he breached the inherent confidence present in the attorney-client relationship (which usually applies to the whole firm even if Gossage himself wasn't representing Rowling).  Even worse, he was just slapped with a fine by the Solicitor's Regulation Authority (the organization that oversees attorney ethics in England) for violating a client's trust.

Regardless of which side of the pond you live on, attorney client confidentiality is a pretty big deal. In most cases, by the time a client seeks the aid of a lawyer, a crisis has happened and the client is often in the midst of a deep personal anxiety. Not only are they emotionally fragile, they are dealing with issues that might require the divulging of sensitive information. Anything from sexual abuse, to financial indebtiture, to murder is on the table, and needs to be discussed frankly in an open and safe environment. If the client can't feel comfortable discussing these issues, then the lawyer can't give the best legal counsel he or she has sworn to provide.

That trust is so important that every country with a judicial system has a rule protecting attorney-client confidentiality. In Massachusetts, where I practice, Rule 1.6 of the Rules of Professional Conduct states that:

A lawyer shall not reveal confidential information relating to representation of a client unless the client consents after consultation.

Without the client's express consent, a lawyer can only reveal confidential information in certain limited circumstances:

1. If it would prevent someone from sustaining substantial bodily harm or death,
2. To obtain legal advice about ethics,
3. To defend himself against allegations of legal misconduct, or
4. To comply with another law or court order.

All 50 states have a rule like this. Depending on the severity of the violation, a lawyer can be punished with fines (as Gossage was), disbarment, or even jail time. Most lawyers take client confidentiality very seriously, not just out of fear of punishment by the local examining board, but because it's the right thing to do.

Every American law student knows the tale of Frank Armani and Francis Belge, two American lawyers who represented Robert Garrow, who was accused of murdering Philip Domblewski in 1973 while Domblewski was camping in the Adirondacks with friends. During a consultation with Armani and Belge, Garrow not only admitted to killing Domblewski, he admitted to murdering and raping several other people. Garrow told them where he dumped the bodies, and his story was confirmed when Armani and Belge personally went to those sites to investigate and photograph the remains.

But because Garrow was their client, Armani and Belge couldn't tell the family members of the deceased where the bodies were.  In fact, Armani and Belge kept silent for nearly a year, despite intense public pressure (they finally disclosed what Garrow had told them after Garrow admitted to the murders during trial). Because they had taken an oath to protect their clients' confidences (no matter how reprehensible), Armani and Belge were not able to discuss what Garrow told them without incurring potential legal repercussions.

In the grand scheme of things, the £1000 (about $1600) Gossage was fined amounts to little more than a slap on the wrist. Gossage claims that he himself is a victim of betrayed confidence, believing that Callegari would keep the secret. Regardless of his excuses, Gossage just learned a valuable lesson about talking out of school, especially when the client is as well-known as Rowling. He should count his lucky stars that she's a world-famous billionaire author, and not a psychotic rapist killer like Garrow.