'James Bond' Lawsuit Tests Boundaries of Common Sense

A so-called James Bond fan has apparently decided to test the patience of the legal system by claiming a boxed set of Bond films was advertised as complete when it really wasn’t.

Plaintiff Mary Johnson filed suit against MGM and 20^th Century Fox Home Entertainment in the state of Washington in April claiming that two DVD/Blu-ray boxed sets — a 50^th anniversary collection of 22 films released in 2012 and a 23-film set from 2015 — falsely claimed to include “'All of the Bond films gathered for the first time in this one-of-a-kind box set — every gorgeous girl, nefarious villain and charismatic star from Sean Connery, the legendary actor who started it all.”

That matter now finds itself in the court of U.S. District Judge Ricardo Martinez, where MGM is seeking a dismissal.

Johnson’s beef apparently is that the boxed sets in question included only the James Bond adaptations produced by EON Productions, the creators of the official Bond films since they debuted with Dr. No in 1962 with Sean Connery as author Ian Fleming’s suave superspy.

Spectre, the 24^th EON adventure, was released in 2015 and starred Daniel Craig.

Over the years, various attempts by other producers to cash in on the James Bond phenomenon have popped up. A Bond parody loosely based on Casino Royale was released in 1967, and only because the producers happened to get their hands on the rights to Fleming’s first Bond book before the EON producers came along. A remake of 1965’s Thunderball called Never Say Never Again was released in 1983, and while it was touted as Connery’s return to the role of Bond, EON had nothing to do with it; the producer only had the rights to the story because he had worked with Fleming on a Bond movie project before EON came along, and when that fell through he was subsequently granted the legal right to the elements of that story, which he shopped around hoping to kick-start his own Bond franchise, to no avail.

Neither of these two films was included with the boxed set, to the surprise of no one who would consider themselves a true Bond fan. Various consolidations and legal maneuvers over the years have put these films into the MGM library and EON can basically do what they want with them, but they chose not to include them in the mega-set of Bond films. Understandable, for sure, given their rival status, though it would have been cool for the set to include them, given that those two tend to fall out of print easily and copies can get pricey on the secondary market.

Johnson’s attorney, Alexander Kleinberg, would have the case turn on the definitions of “all” or “every.” But really, let’s look at the heart of the advertising in question — what constitutes a “Bond Film.”

The 1967 Casino Royale, as stated earlier, is a spoof. So what’s its status as a “Bond Film”? Well, the plot involves an older spy named James Bond, played by David Niven, returning to duty only to find that a younger sex maniac (a clear reference to the Connery version of the character) is running around soiling his good name. To foil an evil plot, Niven is given control over the secret service and gives every agent the code name “James Bond” to confuse his enemies. So here, we basically have an admission within the film itself that it’s not a Bond film, as it acknowledges that Niven or anyone else in the film is not meant to be the same character as Connery’s Bond, who is the focus of the “Bond Films.”

So, where does that leave Never Say Never Again, which is more serious in tone and has Connery back as 007? While Connery’s involvement leads many fans to accept the film into their canon, it’s really as much of an anomaly to the franchise as the Casino Royale farce. Again, if we consider that the “Bond Films” are meant to be a portrayal of one character’s timeline, then Never Say Never Again fails to meet that standard. The Bond Connery played is the same person George Lazenby played when Bond got married, and the same character Roger Moore played when he visited Bond’s wife’s grave, and the same person Timothy Dalton played when he referenced his marriage as a pain in his past, etc. Connery’s Never Say Never Again Bond lacks this specific backstory. So Never Say Never Again isn’t so much a “Bond Film” as it is an action movie with a character named James Bond.

Certainly, the Daniel Craig Bond is a reboot of the character, and thus also doesn’t share the backstory of his predecessors. But by then the character rights had unified under EON, who pretty much earned the right to determine what counts as a “Bond Film” and what doesn’t. And obviously, any movie they didn’t make wasn’t going to count.

One of the arguments made by Kleinberg was that the packaging required the purchaser to be a Bond expert to know the two non-EON movies weren’t going to be included. How such a non-Bond fan would similarly even notice the movies not being in the set is anybody’s guess, but I suppose such silly strains on logic are the realm for lawyerly endeavors.

For her part, Johnson is seeking class-action status on the case on behalf of anyone who bought the boxed sets thinking the other two films would be included. She claims that were it not for her belief those two movies would be included based on the labeling, she wouldn’t have paid $106.44 to Amazon.com for the set. Her suit cites legalese about false advertising having cause an “injury” to the plaintiff’s business or property. I suppose they mean she’s out the hundred bucks, although Amazon’s return policies are pretty lenient, so I’m sure she could have just sent the set back for a full refend. Of course, they'd still argue the inconvenience was the injury.

What’s really amusing is how the lawsuit cites both of the boxed sets, as if she bought the first one, didn’t like that it was missing the movies she wanted, and then three years later bought the re-released version with the additional film and still couldn’t figure out what was actually being sold, as if MGM fooled her twice.

Yes, I get she was probably fully aware of what MGM was doing with the sets to begin with and she thinks she’s “standing up for the little guy” against "the big bad corporate studios” and she envisions herself as a hero for all those who fell for MGM’s insidious trap.  But come on, this is beyond ridiculous.

The whole argument is based on what a “reasonable” person would think is in those boxed sets, which MGM’s lawyers pointed out listed the actual included films on the box. In a motion to dismiss MGM argued that “no reasonable purchaser would expect that a box set would contain films that are not included on the list of titles clearly printed on its packaging."

Kleinberg’s arguments against dismissal were filed May 15. The studio's attorney, John Devlin, has also asked the judge to at least deny the case’s class-action status on the grounds that the class definition, which would include anyone who purchased the discs, is "impermissibly overbroad." Naturally, Kleinberg disagreed, wanting the preserve the ability to achieve class certification in a wide variety of false advertising cases.

A hearing on the motion to dismiss is slated for May 26.

The full filing can be found in The Hollywood Reporter’s recounting of the story .

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A 'Cage' of Retail Exclusives

Best Buy's 'xXx: Return of Xander Cage' Steelbook cover art

Several retailer exclusives popped up May 16, including for the week's top new title, Paramount's xXx: Return of Xander Cage.

Target offered the Blu-ray combo pack of the sequel with an exclusive bonus disc containing 30 minutes of additional content.

Best Buy offered Steelbook packaging with both the Blu-ray combo pack and the 4K Ultra HD Blu-ray.

A 3D Blu-ray version of Xander Cage was offered through several retailers' online stores, though that version, which Paramount didn't really announce or promote, wasn't available on physical shelves.

Also drawing some exclusives attention was Warner's re-release of the 2009 direct-to-video animated Wonder Woman to tie into the upcoming live-action theatrical film. Target offered the Blu-ray with Steelbook packaging and Best Buy offered it with character art cards.

Walmart has an exclusive early window on the final season of "Duck Dynasty" on DVD, which won't be widely available until July 25.

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Retailers Go 'Darker' With Exclusives

'Fifty Shades Darker' exclusives from (L-R) Best Buy, Target and Walmart

Retailers enticed consumers with several options for exclusive editions of Universal's Fifty Shades Darker upon its May 9 home video release.

Target offered the steamy sequel as an "Ultimate Deluxe Edition" Blu-ray, which included wine charms, a wine stopper and napkins, plus 30 minutes of exclusive bonus content. Target also offered the regular Blu-ray with the half-hour of exclusive bonus content. Target set up a 'Fifty Shades' display at the front of stores in a corrugated stand that also touted movies appropriate for Mother's Day.

Walmart's special Blu-ray edition of Fifty Shades Darker came with special packaging containing a photo book.

Best Buy offered the Blu-ray with a Steelbook case.

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New on Disc: 'Ride the High Country' and more …

Ride the High Country (Blu-ray)

Available via Warner Archive        
Warner, Western, $21.99 Blu-ray, NR.
Stars Randolph Scott, Joel McCrea, Mariette Hartley, Ron Starr, James Drury, Warren Oates.
1962. In a wonderful burst of unexpected late glory, Randolph Scott (his final film) and Joel McCrea (his final one of note) play long-ago lawmen put out to pasture by changing times in director Sam Peckinpah’s career-maker and a movie not a few still think is the best he ever made. The spiffed-up print here looks the best of those I’ve seen: great more often than not and easily acceptable in the frequent autumnal fading foliage scenes
Extras: Includes a commentary with savvy Sam scholars Nick Redman, Paul Seydor, Garner Simmons and David Weddle.
Read the Full Review

Don’t Give Up the Ship

Kino Lorber, Comedy, $19.95 DVD, $29.95 Blu-ray, NR.
Stars Jerry Lewis, Dina Merrill, Diana Spencer, Mickey Shaughnessy.
1959. Jerry Lewis plays a World War II vet and seaman officer in Don’t Give Up the Ship, a Paramount black-and-whiter that some might regard as a semi-outlier in his career.
Read the Full Review

 

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Target Pairs 'Passengers' and 'Prey'

In a week with few exclusives tied to new releases, Target linked a recent Blu-ray with a new video game. Perhaps it's a sign of the times, or just an indication of the level of retail interest in the May 2 new releases, but Target didn't have any home video section in its weekly ad circular. The only mention of a DVD or Blu-ray was a promotion with a new video game. Target offered a free Blu-ray of Sony Pictures' Passengers with the purchase of the game Prey at $59.99 for the PlayStation 4 or Xbox One.

Best Buy's circular did tout some new and recent DVDs and Blu-rays, but the only promotion was for preorders for Disney's Beauty and the Beast, for which Best Buy is offering the Blu-ray in exclusive Steelbook packaging.

Best Buy also put up a corrugated display of $2.99 family film DVDs.

Walmart had some exclusives tied to catalog titles. Walmart had a version of Sony Pictures' A League of Their Own: 25th Anniversary Edition that included the film on Blu-ray, DVD and Walmart's Vudu streaming service, plus three baseball cards of some of the main characters, stickers, a collectible patch and a luggage tag for $19.96. The widely available re-release is just the film on Blu-ray with an UltraViolet digital copy.

Walmart also had an exclusive 40th anniversary Blu-ray/DVD combo pack of Universal's Smokey and the Bandit, which includes the CMT documentary The Bandit, for $14.96.

Amazon seemed to have some trouble with Warner titles during the week, as many of the studio's future releases were pulled from preorder and availability of new titles has been spotty. Something similar happened with Disney titles the past few weeks as well, which observers contend is due to distribution disagreements between the retailer and the studios.
 

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New on Disc: 'The Young Girls of Rochefort' and more …

The Young Girls of Rochefort

Criterion, Musical, $29.95 DVD, $39.95 Blu-ray, ‘G.’
Stars Catherine Deneuve, Francoise Dorleac, Gene Kelly, George Chakiris, Danielle Darrieux, Michel Piccoli.
1967. Spirited and sumptuous, yet with an overriding sense of melancholy due in great part to the real-life tragedy that still follows it around, Jacques Demy’s The Young Girls of Rochefort offers fairly persuasive gut evidence that it (as opposed to the prime MGM Hollywood musicals) must have been the primary influence on La La Land.
Read the Full Review

Sunset in the West

Kino Lorber, Western, $19.95 DVD, $29.95 Blu-ray, NR.
Stars Roy Rogers, Estelita Rodriguez, Penny Edwards, Gordon Jones.
1950. Sunset’s bad guys are running a gun-smuggling ring, and you’ll recognize the heavies from a lot of other ‘B’-Westerns.
Extras: Includes a commentary track with Roy Rogers buff Toby Roan.
Read the Full Review

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The 'La La Land' Retail Waltz

(L-R): Exclusive 'La La Land' covers at Target, Walmart and Best Buy

The big retail chains gave consumers their choice of three exclusive versions of the Blu-ray for Lionsgate's La La Land, with special box art for each.

Target offered an exclusive three-disc special-edition Blu-ray with 30 minutes of additional content on the third bonus disc. Target also offered a $5 gift card with the purchase of both La La Land on Blu-ray and the film's soundtrack.

Walmart similarly offered a three-disc version of the Blu-ray.

Best Buy offered the Blu-ray with a Steelbook case.

Best Buy also offered Steelbook packaging with the 4K Ultra HD Blu-ray of Sony Pictures' Underworld: Blood Wars.

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Traveling Back in Time With Our Digital Drivers

It’s been an exciting ride since we first produced the Digital Drivers section in the spring of 2011. In that issue, my colleague Thomas K. Arnold noted that Time Warner CEO Jeff Bewkes thought Netflix would remain a small player without the valuable content from the studios. “Is the Albanian army going to take over the world?” he quoted Bewkes as saying in an interview. “I don’t think so.” Nevertheless, we highlighted Netflix CEO Reed Hastings as a high-level digital strategist, along with Warner’s Kevin Tsujihara, who would later use his digital prowess to become head of the studio. We also anticipated a new digital locker called UltraViolet, which was to provide an avenue for consumers to collect titles digitally in the cloud.

What a difference less than a decade has made in our view of the digital landscape!

Netflix is making its own valuable content, which competes alongside studio content at annual awards ceremonies. The little online service that started with by-mail disc rentals to combat late fees is now a movie and TV series producer that leads the subscription video-on-demand market.

UltraViolet, later grouped into the Digital HD category, is but one of the services in an EST marketplace that includes Disney Movies Anywhere, that studio’s own locker service. Indeed, electronic sellthrough is a growing, vibrant part of the studios’ home entertainment business, but it is still a work in progress, as executives look to offer consumers a superior ownership experience digitally with extras and easier interfaces.

Digital Drivers and services have come and gone. Redbox’s Mitch Lowe was in that first section in anticipation of the kiosk company’s move into digital delivery. Ultimately, Redbox found it better to focus on the good old disc. Netflix executives Reed Hastings and Ted Sarandos, also featured in that first section, have become perennial Digital Drivers, and Walmart’s Vudu service, noted in 2011, is now a primary player in electronic sellthrough.

It’s been an interesting seven-year journey, with many twists and turns along the way. Even Netflix faced some headwinds, taking a big hit on Wall Street when it raised prices and later when the companies that delivered their heavy traffic pushed back and asked them to pay extra.

Where the road for our Digital Drivers goes in the future is likely to change as much as it has since that first section in 2011.


 

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A Salute to the Original Digital Driver: Warren Lieberfarb

Warren Lieberfarb

At 73, Warren Lieberfarb is the proud father of a very famous young adult: DVD, the most successful consumer electronics product in history, which turns 20 this year. And if he seems remarkably calm and content — he’s even taking a twice-a-week history class — it’s because unlike most parents who have weathered a turbulent adolescence, his legacy is not mired in uncertainty and what ifs. It is both assured and crystal-clear.

With DVD, Lieberfarb didn't just make Hollywood a heck of a lot of money. The argument can be made that he also set into motion the sweeping digital revolution that has forever transformed the way we consume entertainment. Streaming, downloading, mobility, even Netflix — none of it, one could maintain, would have been possible without the foresight, vision and resolve of Warren N. Lieberfarb, the original Digital Driver.

That’s why we are singling out Warren Lieberfarb for a special salute in our annual Digital Drivers issue. DVD opened the door to digital as a home entertainment delivery mechanism, and the industry has never looked back. DVD and its successor, Blu-ray Disc, also have served as an entry point for the lucrative electronic sellthrough (EST) business, with the studios shrewdly including digital copies with physical discs in an effort to acquaint mainstream consumers with the concept of pure digital transmission.

Capturing the essence of Warren Lieberfarb — and just how right he’s been about this business, all along — in a space as short as this isn’t easy. So let me go back 10 years, to our April 2007 issue, when I related a few personal anecdotes: “I first met Warren Lieberfarb in mid-1995, when  DVD  was  still  a  glimmer  in everyone’s eye, two rival formats were planning to come to market, and studios were slugging it out over who had the highest prebook numbers for rental cassettes. As editor in chief of Video Store Magazine, I had written a column in which I advocated rental pricing for the new disc format.  Rental, I wrote, was an ingrained consumer habit that would never go away.

“I received a phone call from a harried publicist at Warner Home Video informing me that Lieberfarb wanted to meet with me, for lunch, in the studio dining room. Since Warren had been notoriously press-shy, I accepted, although I had no idea why I had been summoned.

“So I drove to Burbank on the appointed hour, and met one of the most charming and gracious men I had ever encountered — until about 15 minutes into our lunch, when all of a sudden I felt I was in the middle of a sit-down with Marlon Brando in the first Godfather film. … Warren essentially informed me that I was an idiot, and he proceeded to lay out his vision of DVD as a sellthrough-only product that would add incremental revenue to studio and retail coffers. ‘It’s not a replacement technology,’ he argued.”

Boy, was he ever right. The rental model was dying — stabbed by late fees and return trips to the video store — and Warren was convinced packaged media needed to shift gears into a purchase model if it was to survive. There would always be a large chunk of consumers who didn’t want to buy, he said, but as technology advanced they would be driven to some form of advanced pay-per-view, the only electronic delivery system in existence at the time, particularly if it was easier and cheaper.

Right again.

Fast forward two years. DVD was on the market, and Warren Lieberfarb was its chief cheerleader. Columbia TriStar Home Video (now Sony Pictures Home Entertainment) president Ben Feingold also emerged as a vocal supporter of DVD, “but with four of the six majors still on the sidelines, it was rough going,” I wrote 10 years ago. “Analysts began revising sales projections downward, and Warren’s tireless championing of DVD was beginning to tick off some people. I remember asking [former] 20th Century Fox studio chief Bill Mechanic when Fox was going to start releasing movies on DVD. ‘Ask Warren Lieberfarb’ was his response.

“Warren became a bit demoralized. ‘I don't know. T.K., maybe I should just give up the whole thing,’ he mused during a private conversation we had during the July 1997 Video Software Dealers Association convention in Las Vegas. (He was walking with a cane at the time, and had followed me into the restroom, which made the whole scene even sadder.) ‘I'm trying to do something that can be very good for our entire industry, but some people just don't seem to get it.’ The trade press got it, however, and so did some of the major retailers. By the late summer of 1997, Universal Studios and Disney had announced their intent to join the DVD team, and Warner went national.

“But just as it appeared DVD was beginning to gain some momentum, another fly appeared in the ointment: Divx, a pay­per-play variant championed by the chief of Circuit City, one of the country's major consumer electronics retailers. Several studios immediately lined up behind it, including Fox, which had yet to come to the DVD table.

“Warren went to war. He criticized Divx as a half-baked blend of packaged media and pay-per-view that was doomed to failure, but still could wreak havoc on the fledgling DVD format by confusing consumers. I agreed with him, and unabashedly railed against Divx in my columns. And when Divx died, chiefly because the consumer electronics manufacturers failed to support it, I rejoiced with him. I also laughed my ass off when I first heard the following story, which I have never been able to verify as fact or urban legend. A reporter asked the head of a leading Japanese consumer electronics manufacturer why his company, and most other companies, would not support Divx, even though it was being championed by one of their leading retail customers. ‘We were told the most powerful man in Hollywood was against it,’ came the response. ‘Who is the most powerful man in Hollywood?’ the reporter asked. ‘Why, Warren Lieberfarb,’ the executive responded. ‘Who told you that?’ the reporter demanded. ‘Mr. Lieberfarb did,’ was the response.”

I’m going to relate one other anecdote that indicates another side of Warren Lieberfarb — a kind, generous man, a mensch, if you will.

It took place at the Consumer Electronics Show in January 1999. DVD by then was a huge hit; I had a breakfast meeting with Warren at Caesar’s and woke up with the flu, complete with high fever. Stymied by CES traffic, I opted to walk the mile and a half from the Monte Carlo. Warren knew right away I was not well, and at the conclusion of our meal, when I told him I had to hurry back because my flight left in an hour, he insisted his car and his driver take me back to my hotel room and then to the airport. “Thanks, but what will you do?” I asked him, knowing he was at the Bellagio, also a good mile away. “I’ll walk,” he said.
 

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Disrupting the Digital Disruptors

Are the disruptors being disrupted? That’s a good question to ask ourselves as we at Home Media Magazine present our seventh annual Digital Drivers feature, which we launched 2011 as a way to spotlight the executives behind the transition from physical media to digital distribution.

Back then, there were two views of digital distribution. One, held by the studios, was a transactional model in which consumers would buy digital copies of movies, TV shows and other filmed content over the Internet, effectively transitioning their purchase habit from physical media and providing studios with much better margins, with no manufacturing costs, minimal distribution expenses, and, best of all, no returns.

Rental, too, would migrate to the web, in the form of transactional streaming, or pay-per-view.

What studios hoped would be a smooth transition was already then being disrupted by Netflix, which had a whole other view of digital distribution: subscription streaming. Three years earlier, in 2008, Netflix jump-started its then-nascent subscription streaming service by leveraging a sub-contract with Starz that gave it access to Disney and other studio movies. That, in turn, led to the studios dealing directly with Netflix in licensing their back-catalog films and TV shows.

It was a decision Hollywood would soon come to regret, but, as they say, you can’t put the genie back into the bottle. And so it is today that the digital distribution world is dominated by streaming, and streaming is dominated by Netflix, the biggest disruptor this industry has seen since DVD 20 years ago shifted home video from a rental model to a purchase model.

And yet while Netflix and the whole over-the-top (OTT) concept certainly dominate digital distribution, Netflix and the other streamers aren’t immune to disruption, either.

New research from Parks Associates reveals that 39% of U.S. broadband households visit a video sharing site like YouTube at least once a week — and 59% of broadband households visit an online video site on a regular basis. These findings sparked a session at the NAB show in Las Vegas called "OTT Video Services: Fighting to Capture and Retain Users," with Parks Associate senior analyst Glenn Hower, in a press release, maintaining that the growing popularity of user-generated content, particularly among young people, poses a growing treat to professionally produced content. "Consumers 18-24 go to a video sharing site 13 days per month on average,” he said. “They also use a video chat app like Snapchat an average of nearly 11 days in one month. The TV is still the most-used device for watching video content, but increased usage of secondary devices and video apps is making a significant impact on how users, especially younger viewers, consume and perceive content.”

Parks Associates research also shows 26% of households participate in live-streaming activities, such as streaming video from their own device or watching video over a live-streaming platform. "Emerging content platforms are changing the way content creators tell visual stories," Hower said. "Services like YouTube have given rise to video bloggers and sketch performers, who can interact with their audiences in a way that traditional media like film and television cannot allow. In addition, live streaming on platforms like Twitter's Periscope or Facebook Live is raw and impromptu, which can come across as more 'authentic' compared to a recorded video that has been edited and perfected."

The savviest digital drivers are those who realize that disruption is no longer something that happens from time to time, but, rather, is an ongoing thing.

It’s not enough to be platform agnostic. We now have to be content agnostic, as well.

The digital revolution is not over.

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