Lessons From Hollywood And The "Black-ish" Lawsuit: How Business Owners Can Avoid Drama Of Their Own

I don't watch a lot of TV shows, but ABC's hit show "Black-ish" is one that I do catch occasionally. It's a good show, and its recent Emmy win for outstanding comedy series should be no surprise. The show's cast, crew, writers, and creators deserve all the credit for its success.

Just who the creators are, however, seems to be in dispute. Music video and motion picture director Bryan Barber recently filed a lawsuit against "Black-ish" creator Kenya Barris claiming that Barris stole his idea for the show.

Barber’s complaint (made available by Deadline) can be found here, and he essentially claims that he and Barris previously developed a show for VH-1 “about the black experience as seen through the lens of a successful, creative and affluent black man working in the predominantly white entertainment industry.” Barber claims it was originally his idea and that, after the project got scrapped, Barris shopped the idea around without his authorization and ultimately turned it into "Black-ish." In his complaint, Barber sets out what he believes are the similarities between the shows, including the plot, sequence of events, characters, place, and dialogue, and he seeks in excess of $1 million for the alleged theft of his idea.

Of particular interest to me, though, are two other facts contained in the lawsuit. First, Barber alleges that he and Barris were “close personal friends” before they developed the earlier project. Second, Barber doesn’t allege that there was any actual contract between the two about who owned the rights to the idea and the project. Instead he alleges there were only “implied” contracts.

For as strange as Hollywood may be sometimes, these facts are all too real. In my practice, I deal a lot with quarreling business partners and fights over intellectual property in all sorts of industries, and I see these things happen all the time.

If you're a partner or owner in any kind of new business venture, or you're thinking about starting a new business, you might want to commit these lines to memory. Doing so will help you avoid being the star of a drama you'd rather not be in.

  • Don't just give anything away. This one may seem a little surprising, but the law generally doesn't protect mere ideas. If you have a great idea for a business and you share it with someone else, they might be free to use it as they see fit. Similarly, if you happen to share your company's "secret sauce" with a third party, they, too, might be able to use it at will. If their doing that would upset you, make sure you protect yourself and your business with nondisclosure and confidentiality agreements.
  • Be clear about whose roles are whose. You and your partners must define your expectations and responsibilities, and you must put them in a written agreement. Operating agreements serve as the rules for the company, yet too often business owners move forward without them. They're inviting trouble when they do.
  • Avoid the rose-colored filters. Going into business with someone you consider a friend can be great. After all, you tend to work well together and you share the same vision for the venture. You need to recognize, though, that sometimes things don’t work out. Discuss this with your business partners. It's no disservice to them. In fact, you'll all be better by recognizing it.
  • Prepare for the sequel. As good as your plan may be, and as optimistic as you and your partners are, things may not work out. You must plan for this ahead of time and define who owns what. Suppose several friends gather regularly to brew beer, and after some time they decide to make a business from it. They find space, create a catchy name and logo, brew the beer, market it all on social media, and open the business to great fanfare. But the excitement soon subsides, the public finds the next hot place, and, despite their best efforts, the business eventually closes. The friends go their separate ways. Now suppose one of them takes the beer recipes and opens a new place that absolutely kills it. Can they do that? Formal agreements will answer this question easily.

The parties in the "Black-ish" case are in an unfortunate situation, and for them to get to any kind of finale will require that they spend considerable amounts of time and money. We’ll wait and see how it turns out for Barber and Barris, but, in the meantime, I hope that business owners everywhere won't follow their lead.


About the Author

Josh Durham Charlotte attorney Bell Davis Pitt

Joshua B. Durham

Josh represents individuals and corporations in a wide number of matters, including business litigation and shareholder dispute cases,intellectual property disputes, and government investigations.
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