Tribute to James Gandolfini From Contracts in the Real World

As a tribute to the actor, James Gandolfini, who died at the age of 51 yesterday in Rome while on vacation, the following is a story about his hit television series, The Sopranos, taken from my 2012 book, Contracts in the Real World: Stories of Popular Contracts and Why They Matter.  I did not know Mr. Gandolfini, but I admired his tenacity and skill; I also met him once in my Greenwich Village neighborhood, and had a delightfully memorable chat. The story is not about him but is the best tribute I can offer; and for a great actor such as him, it seems apt. 

a Sopranos HouseIn 2002, Robert Baer, a former municipal judge and county prosecutor from hardscrabble Elizabeth, New Jersey, claimed a right to half the value of the Emmy Award-winning HBO television series, “The Sopranos,” believing he had a deal with writer David Chase to co-develop it.

Baer’s dream was to write television shows and, eventually, he persuaded a mutual friend to interest Chase in reading one of his scripts. Chase, a native of North Jersey, was already an accomplished figure in television, with several Emmy Awards to his credit, as well as shows such as the “Rockford Files,” “Alfred Hitchcock Presents,” and “Northern Exposure” under his belt.

The two met in June 1995 in California. At the time, Chase was developing an idea for a television series about a mob boss undergoing psychiatric therapy. In this meeting, Baer suggested that Chase shoot it in North Jersey and the two kicked around some other ideas.

In August 1995, Chase submitted a program proposal to Fox Broadcasting, which agreed one month later to finance a pilot for the show. Chase thereafter asked for Baer’s help in compiling information about the mafia’s inner workings. In response, Baer contacted acquaintances in the local prosecutor’s office, including Lieutenant Robert Jones, an organized crime expert. Based on their conversation, Baer prepared notes for Chase profiling some underworld characters and detailing the mob’s role in the sanitation business and gambling activities.

In October of that year, the two met again in New Jersey for Chase to do more research. There, Baer regaled Chase with New Jersey true-crime stories during a three-day tour of the region. Baer also introduced Chase to other experts: Detective Thomas Koczur, a homicide specialist, and Antonio Spirito, an Italian waiter and riveting storyteller. Koczur played the tour guide, driving Baer and Chase around to view area landmarks, mob hangouts, and criminal crannies. Some of these later provided the backdrop for the show’s regular opening sequence, while others appeared in various episodes.

Koczur also arranged for the group to dine with the local mobster, Antonio Spirito, who plied them with personal gangland tales and became the model for the show’s protagonist, Tony Soprano. One tidbit Spirito shared referenced two cat-burglar mob brothers called “Little Pussy” and “Big Pussy,” the latter a name Chase gave to a character in the series. Jones profiled the Jewish Mafioso, Morris Levy, then in prison, who bore a close resemblance to the role of Hesh Rabkin on “The Sopranos.”

After the trip, Chase polished up his pilot and submitted it to Fox, also sending a copy to Baer, who later provided written comments on it. Throughout, there was some discussion of payment between Baer and Chase, but no actual agreement was ever reached and Chase never paid Baer any money. The two had only agreed that Chase would read another of Baer’s scripts in return for the help he had given.

“The Sopranos” launched in 1999 on HBO, became a popular and critical hit, and ran through 2007. In May 2002, Baer sued, claiming the show and its protagonist were his ideas, entitling him to half the millions in profits Chase had received. Baer asserted breach of contract and quasi-contract, among other claims. The suit sickened Chase’s stomach, he sobbed upon learning of it, and five years of litigation followed.       

Baer’s breach of contract claim was readily dismissed. Baer claimed contracts arose during telephone calls in June and August 1995 and during the October trip. He said each time Chase proposed the same deal: “you help me; I pay you” and each time Baer countered: “I’ll take the risk” and if the show succeeds, “you take care of me in an appropriate manner at that time” and Chase said “Fine.”

Because the two did not agree to any terms, however, such statements were too indefinite to form a binding contract. The parties failed to agree on who was to do what, when or where, in return for how much. Baer accepted this, saying that the profit split, if any, remained to be agreed on later. There was no contract.

So Baer tried to fashion an argument based in quasi-contract, asserting that he conferred a requested benefit on Chase by feeding him ideas for the show and it would be unjust to deny him a share of the payoff. Chase urged the court to rule that Baer was not entitled to any damages based on the value of the various ideas he conveyed. He said all the ideas were a matter of public record.

Chase acknowledged a general rule of quasi-contracts: recovery is appropriate when a person gives someone else novel ideas of value that the recipient exploits. But the law does not recognize any such recovery concerning non-novel ideas. There is nothing unjust about letting someone use ideas already in the public realm, including fact-based stories and identification of known landmarks, Chase argued.

Baer contended that it can be unjust to deny compensation to a person who confers a benefit on another, even if it consists of sharing public information. Baer stressed how he gave Chase ideas for the locations that appeared in the show, the model for the Tony Soprano character, the inspiration for the Hesh Rabkin role, the name “Big Pussy”—and other such ideas that combined to form the plot lines of “The Sopranos.” This argument portrayed as novel Bear’s assembly and combination of the various ideas, including characters, facts and locations, into the conceptual singularity that became “The Sopranos.”

However, this sort of mosaic theory of novelty had no support in law and little in logic. A non-novel idea does not become novel by being conjoined with another non-novel idea. Some creative difference must arise from the conjoining to warrant recognizing the product as novel.

Stringing together a series of mob stories at various locations in North Jersey, based on an assembly of particular facts, did not cut it. Further, none of these ideas belonged to Baer, and many of the stories were actually supplied by others, including Jones, Koczur, and Spirito.

Baer parried that even if his ideas were not novel in general, they were novel to Chase. This argument likewise failed; it is not relevant whether an idea is novel to a particular person. Rather, the issue is whether the idea is available in the public domain. In fact, an important line of cases makes another distinction, between “contract-based” claims to interests in an idea and “property-based” claims.

A property-based claim, such as an assertion of copyright or trademark, requires showing absolute novelty—something new under the sun. The standard is relaxed for contract-based claims, which require only that the idea be novel to the buyer. Because Bear’s contract claim had failed, and he was making instead a quasi-contract claim, this line of cases hurt his argument.

 * * * * *

These losing arguments did not mean Baer had done nothing for Chase—only that he was not an equal partner in the creation of “The Sopranos” and had no claim to value in the ideas. Baer had, however, performed other services and could recover for them. The court called these services “location scout, researcher and consultant.” For these, Baer was entitled to a jury’s estimate of their reasonable value, a measure called “quantum meruit.”

Reasonable value of services can be measured in one of two ways. One method looks at the gain to the recipient, Chase, based on the market value of services rendered, the Hollywood rate for such spadework. That is an especially fair method when the recipient requested services.

The other method looks at the loss to the provider, Baer, based on out-of-pocket costs incurred, expenses of riding around town for three days, lunch, and so on. Here, because Chase had requested Baer’s services, their market value was the more appropriate measure.

So the two wrangled over what factors determine market value. Baer thought they included the franchise value of “The Sopranos”—a large figure—while Chase argued otherwise. Baer offered expert witness testimony that this kind of spadework for a show can earn $5,000 weekly plus bonuses for successful programs, nearing $100,000. Chase countered that it is as common for such work to go unpaid, particularly at the incubation stage where Baer contributed his services.

The trial lasted one week; the jury deliberated for less than 90 minutes. Their verdict: Chase did Baer a favor by reading his first script and Baer did Chase a favor by introducing him to North Jersey mob culture. Baer was entitled to something for his services, which Baer had already done: reading another script. Chase owed Baer nothing more. After hearing the judgment, Chase was relieved: “It is like having a fly in your bathroom for all these years and suddenly getting rid of it with a fly swatter.”

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4 Responses

  1. IP prof says:

    “A property-based claim, such as an assertion of copyright or trademark, requires showing absolute novelty—something new under the sun.”

    I defer to your analysis of the contract claims, but absolute novelty is not required to obtain either a copyright or a trademark. Copyright requires independent creation, not necessarily absolute novelty, and a TM need only be source-identifying.

  2. jon stanley says:

    I was born and raised in Elizabeth, Italian/Irish family from ‘the Port’, in Elizabeth…..I’ll lay ya odds someone got to the jury.

  3. Lawrence Cunningham says:

    IP Prof: I’ll defer to your qualification of my statements, which may have been too broad or general. I confess reliance on and adaptation of a passage in the Baer court’s opinion (set out below). It may suggest that New Jersey law (which applied) adopts a different view, at least in the narrow setting addressed. Notably, the court’s prediction of New Jersey law was based, in turn, on a federal appellate court’s prediction of New York law, which may likewise reflect a minority approach (The latter opinion, incidentally, was written by then-Judge Sotomayor.) Here is the Baer court’s passage:

    Next, Baer argues that his ideas are compensable in quasi-contract because the ideas, though not novel in an absolute sense, were novel to Chase. New Jersey law, however, does not recognize the “novelty to the buyer” theory for idea submission claims that are not contract-based. In Johnson v. Benjamin Moore & Co., 347 N.J.Super. 71, 788 A.2d 906, 919 (App.Div.2002), the New Jersey Appellate Division adopted the standard announced in Nadel v. Play-by-Play Toys & Novelties, Inc., 208 F.3d 368 (2d Cir. 2000). The Nadel, or New York, standard distinguishes between idea submission claims that are property-based, which “can only arise from the taking of an idea that is original or novel in absolute terms,” and claims that are contract-based, which must only satisfy a “novelty to the buyer” standard. Id. at 378. Under the Nadel standard, Baer’s quasi-contract claim, which by its very nature is not based in contract, see Wanaque Borough Sewerage Auth. v. Twp of W. Milford, 144 N.J. 564, 677 A.2d 747, 752 (1996), fails because, as he has conceded, he cannot make a showing of absolute novelty.

    Perhaps I should not have given copyright or trademark as general examples of such property-based claims.

  4. Lawrence Cunningham says:

    jon stanley: I’ll defer to you on the relevant culture, but note that the judge had whittled most of Baer’s case down before it got to the jury; the jury addressed relatively small stakes in the overall case.