Repost: Why J.K. Rowling Should Walk Away From Harry Potter Forever

[Author’s Note, November 26, 2018] Fantastic Beasts: The Crimes of Grindelwald has been out for a few weeks now and has been cleaning up at the box office. Too bad the reviews are trashing the movie. It got me thinking about this old piece I wrote three years ago when the first Fantastic Beasts movie had been announced. I’m republishing it here for your enjoyment.

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The other day, J.K. Rowling gave an interview with Matt Lauer about her charity Lumos and mentioned she probably wouldn't write another story about Harry and the gang, although she wouldn't foreclose the opportunity altogether. I don't know whether Rowling will ever return to Harry Potter but I do know that she shouldn't. In fact, I think she should relinquish all rights to the Potterverse before she messes it all up.

Okay what? Messes it up? J.K. Rowling is a goddamn international treasure and I should be strung up by the neck for thinking such heretical thoughts, right? Well maybe, but first let me say that I have nothing but admiration for Rowling's skill and artistry. The books and films stand as towering achievements in their respective fields and the world is undoubtedly a better place with Harry Potter than it would be without. And that's exactly the problem.

We revere authors and creators of valuable intellectual property. We assume they know what's best when it comes to their work. And sometimes that's true! George R.R. Martin certainly believes it. The general sentiment is that his voice is the only one worthy of steering the Game of Thrones ship. The same probably would have been said about J.R.R. Tolkien and Sir Arthur Conan Doyle. But as fans, I think we've been burned by too many Special Editions/ Director's Cuts/ sequels/ prequels/ sidequels/ reboots/ and preboots to feel anything but trepidation when a creator remains involved for too long with their own work. I get it. It's your baby, and it's hard to walk away from something that you poured your heart and soul into. But I'm a firm believer in the Death of the Author, and I've stated on this blog several times that when a work takes on a certain level of cultural importance, it transcends the law and becomes the property of society at large, not just the creator. That was the original intention when copyright protections were baked into the Constitution. Remember too that history is replete with authors who aren't the best judges of their own work; George Lucas is a prime example of how far from grace one can fall simply by sticking around for too long. And I want Rowling to avoid that fate.

All evidence indicates that she's not stepping away. She's released several short stories and updates on the lives of the main Potterverse characters and is even writing a trilogy of screenplays for Warner Bros featuring the tertiary Potterverse character Newt Scamander (to be played by Oscar winner Eddie Redmayne) in Fantastic Beasts and Where To Find Them. There is limitless money to be made from the Potterverse, so I think it's just the beginning of a huge tidal wave of stuff with J.K. Rowling at the helm.

Obviously the law allows Rowling to do whatever she wants. Copyright law, particularly in the U.S., isn't equipped to consider the cultural importance of works like Star Wars or Harry Potter. The result is that all art, regardless of quality, is treated the same, which can be a good thing because it prevents systemic discrimination. The downside to that approach is that financial reward becomes the only measure of success. And that just makes it harder to let go. It's easy to convince yourself that you and only you are capable of maintaining the integrity of the work over the long haul. It becomes even easier if there's a lot of money to be made by doing it. The law incentivizes you to stay. And because copyright terms last for so long (life of the author plus 70 years), Rowling's great great grandchildren will be able to profit from her work.  And I think it's a shame to keep something like that so closed-source.

To my eyes, the seams are already showing. Three years ago, Rowling publicly stated that she wished she had killed Ron out of spite and that Hermione really should've ended up with Harry. The fact that she admitted this publicly is problematic enough - it shows a tone-deafness to the effect her words have on the fan-base (which is surprising considering her generosity to her fans). It also suggests that she might not have a full grasp of what makes the story work (i.e. that Harry's arc isn't about romance). 

So what should Rowling do? Well, I can't believe I'm saying this, but I think she should follow in George Lucas' footsteps. During an interview in January for his bizarre animated film Strange Magic, Lucas mentioned that he originally envisioned writing and directing Episode VII himself as the first of a new trilogy of Star Wars films. Ultimately, he decided to spend that time with his family instead, so he cut the cord and sold Lucasfilm to Disney. It was a remarkable bout of self-awareness from a man who has typified anything but for so long. When asked if he was involved with the new film, Lucas said that he knew nothing about the story, had seen no footage, and was looking forward to watching it in a theater... as a fan. When you're the author of something popular, knowing when to walk away is a valuable trait, and even though he took some hard knocks getting there, Lucas finally learned it. 

Rowling should walk away from Harry Potter the same way Lucas walked away from Star Wars. She can retain the copyrights to the main story if she wants, but license or sell everything else to Warner Bros for a whole new universe of books, films, and TV shows (she would make a small fortune either way). She can even stay on as a figurehead or elder stateswoman who gets approval over story and design decisions. After all, who wouldn't want to see a series set at an American wizarding school? Or a Quidditch version of Miracle on Ice? Or a trilogy of films about the adventures of the young Dumbledore brothers? 

This would give Rowling the clarity to focus her busy schedule on her Cormoran Strike series (which is being adapted into a BBC television series... my wife is so excited) not to mention her charity. Lucas and Ridley Scott (Prometheus, yecchh.) are poster boys for what happens when you overstay your welcome. It's never a bad idea to go out while you're still on top. 

Superman Can Wait: My Personal Experiences With Not Getting Agreements In Writing

You know, I say "get everything in writing" so often on this blog that I feel like I should have it pre-engraved on my headstone. I may be a broken record about it, but that's only because I've had plenty of first-hand experiences where that information would've come in handy. Here's one such experience that proved so formative, it helped shape my eventual journey from film to the law.

In the summer of 2002, I was a freshly minted RISD grad working in the vault of a major post-production house in New York City. I was hoping that after a few months organizing shelves of film and tape, they would call me up to the big leagues so I could learn to be an assistant editor or color correctionist. It wasn't my dream, but it was proximate enough to my dream that I stuck it out. In late August, my friend Maureen from college called and told me about a job opportunity she knew I couldn't pass up. After graduation, Maureen moved back home to Orange County where she was picking up odd jobs in the film business. A friend of hers - who I'll call Jenny because I can't remember her actual name - had been an assistant editor on Brett Ratner's films, and because Ratner was about to direct the new Superman movie, Jenny was slated to work on it. According to Maureen, Jenny could get me a job as a production assistant on the film, but I had to get my ass to L.A. pronto, since production was ramping up. This meant leaving my steady job and steady girlfriend (who eventually forgave me for moving 3000 miles away and married me) and taking a hell of a risk. Other than Maureen, I didn't know anyone in California. I had no money, no connections, nowhere to stay. I was going out on a limb, and trusting to fate, God, the universe, whatever, that it wouldn't snap beneath me.

With Maureen's help, I called Jenny who put me in touch with the production company. The woman I spoke to there was very encouraging and though she couldn't guarantee I'd be hired, she assured me that once I got to Los Angeles, I could come in for a proper interview and, most likely, get myself a set PA job. A month later, I was in the City of Angels, ready to make my dream come true.

"A job as a production assistant?" you might ask. "That was your dream?" Well, yes. Certainly I had no illusions about where a PA's job was on the totem pole. I knew the majority of my job would be making coffee runs to the nearest Starbucks. But this was a chance to work on a Superman film. SUPERMAN! For those who don't know me, Superman is my jam, particularly Christopher Reeve's iteration. Not enough to name my kid Kal-El or anything, but growing up, he meant a lot to me. He represented the ideal of heroism and goodness in a world that seemed continually bereft of both. He was what I wanted to be. It didn't matter that the script Ratner was working from (written by J.J. Abrams) had leaked online and been universally lambasted. It didn't matter that Ratner had only one good film under his belt and was widely considered a hack. It only mattered that it was Superman and I would be on the same set as him. How could this not all work out?

Oh my friends, how I'd love to tell you the gambit paid off. And if life were more like a movie, it would have. But within weeks of landing in L.A., Ratner was off the project and it reentered development hell. And all of a sudden, I had to make a life for myself in a strange place with no resources. You could say I acted recklessly, that I was dumb. And you'd be right to say that. A smarter man might have waited for an official job offer from Warner Bros, something in writing that I could hold in my hand on that plane ride across the country. But I was young and ambitious and excited to get started before there was even something to get started on. I upended my life without a guarantee of employment, only the vague promise of it.

But do you know how many artists do the very same thing? Sure, most don't move across the country for it, but it's so common for artists to get excited and start working on something before the deal is written down that it can take up anywhere from 50% to 75% of my law practice. So when I tell you to get everything in writing, I say it not just because it's smart business, not just because I see my clients going through it, but because I've lived it and know what can happen if you don't. Getting all your deals in writing protects your interests and holds everyone accountable. It should be an invaluable tool in your arsenal. So learn from my mistakes. If the job is important enough, it can wait until everything is written down. 

Hell or High Water Gets That Most Investigations Are Boring

Because I’m a parent to a small child, I don’t get to the movies as much as I’d like. This means I’m usually months behind on the latest hits. Such is the case with Hell or High Water, last year’s critical darling from director David McKenzie and writer Taylor Sheridan. I missed its theatrical run and all the awards hoopla, but thanks to the magic of premium cable, I was able to watch it 100 times in a row when it premiered on Showtime this week. My verdict? It’s my new favorite movie.

And what’s not to love? Chris Pine’s smoldering steeliness? Ben Foster’s mustache? Enigmatic dialogue dripping with portent? Dammit this movie is great! It’s almost like Sheridan’s films (including Sicario and Wind River, which I’M DYING TO SEE) were created in a lab just to appeal to my sensibilities.

Anyway, on my thirtieth or fortieth rewatch, something stuck out that I thought was worth writing about: the movie nails how slow, methodical, and full of dead-ends the investigative process can be.

The narrative thrust of Hell or High Water is that Toby and Tanner Howard - Pine and Foster, respectively - are trying to save their family ranch from foreclosure the only way they know how: by robbing branches of the very bank that's about to foreclose on them. Toby, an unemployed oil worker, and Tanner, an ex-con, are carrying out early morning heists of branches located in quiet, ramshackle towns like Olney and Archer City because they're less likely to get caught. As their lawyer points out midway through the film, it's a big beautiful middle finger to the banks that have helped level the Texas middle class.

Lawyer

You know, they loaned the least they could. Just enough to keep your mama poor on a guaranteed return. Thought they could swipe her land for $25,000. That's just so arrogant, it makes my teeth hurt. To see you boys pay those bastards back with their own money? Well, if that ain't Texan, I don't know what is. 

Meanwhile, Texas Rangers Marcus Hamilton (Jeff Bridges) and Alberto Parker (Gil Birmingham) are hot on the trail. They spend time interviewing witnesses and gathering evidence as all good cops do, but Marcus realizes the brothers are planning at least one more robbery. So in order to catch them in the act, he picks one branch in Coleman, TX he expects them to rob, and plops himself on a bench right in front of it. Alberto, who Marcus has been mercilessly teasing throughout the film, isn’t happy about it.

Alberto

So, this is your plan? We're just gonna sit here and see if this is the branch they rob next?

Marcus

What would you rather do? You wanna drive 80 miles back to Olney and look for more fingerprints that we ain't gonna find? Or you wanna drive 200 miles back to Lubbock and look at mug shots that don't matter because nobody knows what these sons of bitches look like? Or we can just wait here for them to rob this bank, which is the one thing I'm pretty damn sure they are going to do.

Marcus is right. Sometimes there just aren't any leads to follow. No more interviews to be had. The only thing you can do is wait. At no point in the film (until the climax) does it feel like the Rangers are closing in on the Howard boys. In fact, most of the film it feels like they're hopelessly behind the ball.

After the second robbery, Marcus sits at a table in a diner and chats with some good ol' boys who saw Tanner and Toby rob the bank across the street. There doesn't seem to be any urgency in the way Marcus and Alberto conduct themselves. There's even a little joking back and forth between them and the old-timers. That’s what real investigations look like. It's methodical. One step at a time. Gather the evidence, write it down, move onto the next piece. It's halting and can often feel like wheel-spinning.

I've been an investigator, both as an attorney and as a producer. I've worked on numerous criminal and civil investigations and I can tell you that they are rarely as action-packed and exciting as you see in movies and TV. Most of the time, it’s boring grunt work. In my TV days, I worked on law enforcement shows with both active and retired detectives who all told me the majority of investigations were spent in the office reading documents. A private eye I used to work with told me 90% of his job was sitting in a car waiting for someone to come out of a house. I’ve personally worked on investigations so dull I thought I would literally die of boredom.

Years ago I was interning at the DA’s office in Boston and we were investigating a woman suspected of prescription fraud. Most of my efforts were spent cataloging the hundreds of times she got a prescription and which pharmacies she filled them at. This meant putting all that information into a gigantic Excel spreadsheet. It was painstaking work and it took weeks. But that spreadsheet was key to nailing down her pattern and building a case. We’d never have been able to issue an indictment without it. 

But you know what else? Marcus is also wrong. Turns out, he picked the wrong branch to stake out, a fact he only realizes the next morning when the Howard brothers don’t show up to rob the joint. 

Marcus

I think I got this figured. First two banks, they were Texas Midland banks. All right, there are seven branches altogether. The main branch is in Fort Worth. They're not gonna mess with that. All right? They hit the branch in Olney. They hit the one in Archer City. Then there's the one here.

Alberto

Which they did not hit.

Marcus

Alberto, will you please follow me? Just keep your mouth shut and just listen to what I'm gonna say. There's the one here, then there's the one in Childress. There's the one in Jayton.

Alberto

That one's closed.

Marcus

I know that one's closed! I know that one's closed, Alberto. That's my point. Jayton is closed. That just leaves Post. They're not gonna mess with the bank in Childress, that's a fairly decent-sized town... It means that the only branch that fits the bill is in Post.

Lots of times, you make educated guesses that make sense in the moment but end up being wrong just ‘cuz. In the movie, Marcus figured the brothers would hit the Coleman branch, likely because it was a small one-teller stop, and would draw little attention. And indeed, the scene immediately preceding that showed the brothers arguing over that very issue. But in the harsh light of day, Marcus realized he made the wrong call. Which happens. And then he had to speed across the state to Post, TX to make up for it. 

Investigations aren’t sexy or thrilling or dramatic. There are false starts and bad calls and they’re monotonous and take a long time. And sometimes, they require you to just sit around and wait for something to happen. But if you want to catch your man, sometimes that’s what you gotta do. Commit to the boring stuff no one else wants to do.

When The Movies Get It Right: Probable Cause and David Fincher's Zodiac

[Originally published June 1,  2013. Since today is the 10th Anniversary of the release of this classic crime film, I'm re-upping it. Enjoy!]

When Dirty Harry opened in 1971, it became a box office success and critical darling. It solidified Clint Eastwood's rising star and proved that gritty cop dramas like Bullitt, and The French Connection were legitimate sources of entertainment to a world that grew tired of psychedelic, experimental, 60s era musicals and comedies. The film was very loosely based on the real life (and in 1971, still ongoing) Zodiac murders; likewise, Eastwood's character was based on the police officer assigned to track down the Zodiac, San Francisco Police Inspector David Toschi. Dirty Harry ends with Harry Callahan getting the drop on the film's villain, Scorpio, in a San Francisco junkyard where Eastwood delivers his famous "do you feel lucky" speech. Then he blows Scorpio away with his .357 magnum revolver... a gun so powerful it can carve a hole in solid concrete. Of course the real Zodiac never got to be on the receiving end of such rough justice and Dave Toschi retired in 1983 having never arrested the most famous unknown serial killer in American history.

Dirty Harry has many charms: an iconic antihero, one of the great movie quotes of all time, topical relevancy, and a well-staged, taughtly paced finale. But it was a hit precisely because it allowed the American public to get closure on a national terror that would never resolve. For that same reason, the film left me cold. As you already know, I'm a big supporter of verisimilitude in film. I don't believe that filmmakers need to sacrifice reality on the alter of drama. And while I understand why the filmmakers of Dirty Harry killed off Scorpio, I don't have to tell you that gunning down the bad guy - even if he deserves it - is pretty shoddy police work.

That's why David Fincher's epic crime film Zodiac - a richly detailed chronicle of the Zodiac case - is one of my all-time favorite films. It understands to its very core what good police work is and how good policemen investigate crimes. About halfway through the film, Toschi (played in a career-making turn by Mark Ruffalo), exits a policeman's only screening of Dirty Harry, after years of being stymied in his investigation. Toschi is so torn up about his inability to catch the Zodiac and the movie's unabashed twisting of the truth that he can't watch the whole thing... he just paces and smokes in the lobby. When the movie lets out, the police commissioner approaches him and says, "Dave, that Harry Callahan did a hell of a job closing your case!"

Toschi's response: "Yeah, no need for due process, right?" Zing!

You see, everyone gets due process in this country. Everyone. Regardless of age, race, gender, sexual orientation, national origin, ethnicity, class, or any other category you can devise. Killers, rapists, thieves, and bad men all still get due process because it's written in the Constitution, the highest law of the land. Due process can mean a lot of things, but in the context of a criminal case, it means that you can't be punished without a fair trial and a proper investigation. And to conduct a proper investigation, police need to investigate clues, gather evidence, and then make arrests based on that evidence. That evidence, if properly gathered, catalogued, and analyzed, results in Probable Cause, a foundational element of criminal investigations that allows an officer to make an arrest based on that evidence. You can't make an arrest without Probable Cause and if you do, the suspect will be freed before you can say "kicked off the force."

To drive that point home, Zodiac shows Toschi and his partner Bill Armstrong investigating Arthur Leigh Allen, a very promising candidate for the Zodiac. Allen had been implicated by a former coworker for saying things that later showed up in the Zodiac letters. Allen had the same glove size, boot size, and general appearance as the Zodiac. He owned the same types of guns, had the same military training, lived nearby one of the Zodiac victims, and even owned a Zodiac brand watch with the infamous crosshairs insignia that the Zodiac killer signed his letters with. But despite eliciting high interest from the police, Allen was never arrested. How can that be, you might ask? Because even though there was an abundance of evidence, it was all circumstantial - in other words, the evidence was  highly inconclusive, no matter how suggestive it was of Allen's guilt. In order to justify a probable cause arrest that would stand up to judicial scrutiny (i.e. not get thrown out of court), they needed something much more concrete to tie Allen to the Zodiac killings. That's why the film kept harping on DNA and handwriting samples (the Zodiac hand wrote nearly all of his letters). And when they got both from Allen, they didn't match the Zodiac.  The film takes great pains to show us Toschi and Armstrong gathering evidence, going through the motions of getting a search warrant to Allen's house. They fail because, according to proper 4th Amendment procedures, the evidence to get a search warrant issued had to be based on probable cause, which the issuing judge didn't believe existed. They do finally get the warrant when Allen moves to a different jurisdiction with a judge who is willing to issue the warrant. The scene where they toss Allen's trailer is one of the creepiest scenes in the film.

Toschi and Armstrong believed in Allen's guilt to such a degree that when they're told that Allen's handwriting isn't a match for the Zodiac, they're visibly destroyed. Toschi's career takes a nosedive (at one point, he's suspended from the force after being implicated in the news as the writer of some of the Zodiac letters. He was later exonerated) and Armstrong transfers out of the department. Without the handwriting match, they don't have probable cause, and without probable cause, there's no arrest, and without the arrest, they can't investigate Allen further. The case hits a dead-end. And rightfully so. Allen may have been the killer, but there just wasn't enough evidence to get him in front of a judge.

Do you know what Toschi and Armstrong didn't do? They didn't follow Allen against their Captain's orders. They didn't bug his phone without a warrant. They didn't catch him in the act and gun him down after a dramatic chase.

One of the things that makes Zodiac a great film is that it eschews a lot of the easy choices that screenwriters make when adapting from real events. Often, screenwriters will eliminate, compress, or invent characters and events to suit the narrative structure rather than be truthful to reality. But that didn't happen with Zodiac. The film takes time to explain what probable cause is, why it's important, and why Toschi's and Armstrong's case against Allen dies on the vine without it. Later in the film, when cartoonist Robert Graysmith picks up the investigation on his own, he's instructed by various law enforcement officials, including Toschi, to stay away from the circumstantial evidence and stick with the DNA and handwriting samples because they're concrete and will hold up in court. The rest is just window dressing.

The film treats police procedure with respect, it treats cops and their investigative methods with respect. It doesn't take the easy way out, and it knows that you can still build drama and tension without twisting reality. More than that, it understands why due process is important and why, sometimes, you have to let the bad guy go if you want to honor the Constitution.

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!

Making The Injured Party Whole Again: Punitive Damages in John Wick 2

[Warning: Major spoilers for John Wick: Chapter 2 ahead. Don’t read unless you’ve seen the movie or don’t care about being spoiled.]

At the end of John Wick: Chapter 2, the eponymous hero (Keanu Reeves) strolls into The Continental, the posh assassins-only hotel in downtown Manhattan, points a gun at bad guy Santino D’Antonio (Riccardo Scamarcio) and blows his head off despite the protestations of Winston (Ian McShane), the hotel’s proprietor. This is a violation of the most sacred rule in the underworld: The Continental is safe ground. No assassin may kill another on the premises without paying the ultimate price, a penalty we saw play out at the end of the first film. A severe punishment for the breach of a severe covenant. 

Soon after, Winston summons John to Central Park to mete out the same sentence. John is informed that he is "excommunicado," that he can no longer seek refuge at any Continental hotel, and a $14 million contract has been put on his life. Every professional killer in the world will now be looking for him. Out of respect, John is granted a one hour head start to run. But before leaving, John issues this chilling ultimatum:

"You tell them, whoever comes, I'll kill them. I'll kill them all."

Oh man, it’s so good I just got goosebumps typing that. If this film is any indication, John Wick: Chapter 3 promises to be a highly entertaining bloodbath.

Anyway, while the whole mishegas was playing, I was thinking about contract damages and whether John’s actions, bad as they were, deserved such serious punishment. I know it’s silly to presume traditional contract principles apply in an underworld populated by killers and other bad men, but the Wickverse is steeped in rules and formality and the films go to great lengths to showcase that. Everything is intricately choreographed. The system is built on profound order and relies on respect for that order. It doesn’t matter if you’re a lowly factotum or the famed Baba Yaga, the system comes before the man and everyone must pay what they owe. The contracts may not be written on paper, but they exist, and participation in this world requires that everyone meet their contractual obligation - we can call this one the Implied Covenant of Assassination Forbearance.

So humor me for a bit. John agreed to the rules of The Continental, then blatantly flouted them to exact his revenge on Santino. A kill order is placed on his life in order to appease the system. Is that bounty fair? It’s an important question to ask because fairness is at the heart of calculating damages in contract or tort law. How do we make the injured party whole again? How do we make it so that the injuries they sustain are offset as much as possible?

It can be done monetarily, of course. That’s the way we usually resolve contract disputes in the U.S. Compensatory Damages are financial in nature, the most common of which is what lawyers call Expectation Damages: the damages that are intended to cover what the injured party expected to receive from the contract. 

There are other types of monetary damages too. Consequential Damages, which are paid to the injured party for indirect damages other than contractual loss; Liquidation Damages, which is when the contract states that the breaching party will be liable for a specific amount of money; Nominal Damages, which are awarded when the injured plaintiff doesn't incur a monetary loss but the judge wants to show the winning party was in the right; and Restitution, which is an equitable remedy designed to prevent the breaching party from being unjustly enriched.

In this movie though, the damages aren’t monetary. While money - paid in the form of gold coins - is important to many operators in the Wickverse, to those in power, it's less important than honoring the system (the entire plot hinges on the importance of a blood oath John made). Instead, the damages to be paid = John’s death. But John’s death isn’t just about making The Continental whole again. It’s to send a message. John didn’t just kill some random person, after all; Santino was a member of the shadowy High Table, a cabal of crime lords alluded to throughout the film, but never seen. The High Table presides over the entire Wickverse, and everyone works for or with them to some degree. So the price on John’s head is also about removing a level of chaos that John has introduced into the system. To the powers that be, he must be punished severely enough that it deters future assassins from making the same choices. $14 million and every killer in the world gunning for you sounds like a pretty major deterrent. And to me that sounds an awful lot like Punitive Damages.

According to the New York State Court of Appeals, Punitive Damages are:

“available only in those limited circumstances where it is necessary to deter defendant and others like it from engaging in conduct that may be characterized as ‘gross’ and ‘morally reprehensible,’ and of ‘such wanton dishonesty as to imply a criminal indifference to civil obligations.’”

Punitive Damages come into play when Compensatory Damages aren't enough to make the injured party whole. They're also generally unavailable for contract disputes, but can be applied in contract situations where there’s an overlapping tort claim. So are there any tort claims that can piggyback onto the breach of contract claims The Continental and The High Table might have against John that could result in Punitive Damages? It’s a stretch, but I think there might be.

For The Continental, I would say their best tort claim against John would be Intentional Interference with a Prospective Economic Advantage. And while the elements of that claim differ by state, they generally are:

1. An economic relationship existing between the plaintiff and a third party containing the probability of future economic benefit to the plaintiff,

2. Knowledge by the defendant of the existence of the relationship, 

3. An intentional act on the part of the defendant designed to disrupt the relationship,

4. Actual disruption of the relationship, and

5. Damages to the plaintiff caused by the acts of the defendant.

While proving all these elements isn’t a slam-dunk, I think a good lawyer could make them work. John knew that The Continental was a safe haven for professional killers, traveling there throughout both films to derive its benefits and utilize its unique services (the Sommelier and Tailor sequences in the second film are incredible). John also demonstrates previously existing relationships with various hotel staffers, including friendly bonds with the managers of both the New York and Rome branches. John is also plainly aware that many other assassins use the hotel for the same reason he does: for peace of mind that they won’t get whacked while on the job, as he makes several allusions to this throughout the two films. In fact, in the first film, after he’s attacked in his room by Ms. Perkins, John is able to subdue her and instead of killing her, he asks a fellow assassin named Harry to watch her, then report her to the manager. This is all to say that John clearly knows the hotel derives an economic benefit between itself and its specific customer base. This takes care of the first two elements. 

The third element is John’s execution of Santino on Continental grounds, even as Winston tells him in the moment not to do it and what the repercussions would be if he did. The fourth and fifth elements are a bit harder to prove within the text of the film, since we don’t know if The Continental’s business suffers as a result of John’s actions. However, I think a reasonable argument can be made that business may be jeopardized. The whole benefit to staying at The Continental is that you can’t be killed there. It’s a safe place for everyone regardless of your criminal affiliation. If customers don’t feel safe there, they won’t use the hotel. If they don’t use the hotel, the hotel will lose money and cease to operate. You’d need some documentation to prove that assassins are now staying away from the hotel, but I think you could get there.

Because we've never seen The High Table and don't know the extent or type of its business, it's harder to say what economic harms they can pin on John Wick. I do think they could also benefit from an intentional interference claim though. What little we know of the group indicates that membership is incredibly coveted, and that each member controls certain geographic areas. The unexpected death of a member could result in lost profits from the various rackets they operate. 

Look, obviously no one is taking John to court (though it wouldn't surprise me if an underworld judicial system pops up in the sequel), so I appreciate you humoring me on this little journey. I'm always looking for the legal footholds to latch onto, even if it's not really applicable. That said, everyone in the Wickverse operates out of a certain sense of justice that isn’t wholly divorced from our own. The High Table and The Continental owners certainly feel that having John Wick killed for his transgression is the right thing to do. A fair thing to do. That's what will make them whole again. And if the punishment is harsh, well it's deservingly so. John, on the other hand, has very different ideas about what's fair. And when those two concepts of fairness go head to head in the sequel, I imagine it'll be a bloody good time.