David Halberstadter

As counsel to entertainment industry heavyweights with more than 35 years of practice, Halberstadter works as an advisor and litigator with a focus on IP disputes.

His clients include Viacom CBS Inc., Starz, Entercom Communications Corp., Goldco Direct LLC, Amblin Partners and other companies.

As theaters began re-opening this spring, Halberstadter reflected on a difficult year.

“The industry got severely depressed at the start of the pandemic as theaters shut down,” he said. “The questions then were about force majeure contract clauses” that can excuse parties’ performance obligations in dire circumstances.

“Slowly but surely production resumed using ‘bubble’ shielding for safety and other measures,” Halberstadter added. “There were creative efforts to make it look like people were talking across a table when in reality they were more than six feet apart.”

He added the prediction that people will again go out to the movies.

“Once an initial reluctance passes, people will crave the communal experience of being with friends at a theater,” he said. “It’s just not the same as your couch.”

Meanwhile, litigation proceeded. Halberstadter served as lead counsel and prevailed for client Starz against a persistent plaintiff who insisted—in four successive federal court complaints—that the television crime drama series “Power” infringed his novels.

“First he filed in pro per in Virginia, and the judge dismissed the complaint on the court’s own motion,” Halberstadter said. “Then he tried again a year later but gave up after we threatened sanctions if we had to file a motion to dismiss.”

The plaintiff wasn’t through.

“He got a lawyer and brought his third complaint in California, and this started to become a hard-fought case. We moved for dismissal, but the judge [the late Manuel Real] did not rule on our motion for a long time.”

“So we started discovery and took depositions,” Halberstadter added. “As soon as we filed for summary judgment, Judge Real, who marched to his own drumbeat, ruled in our favor on our original dismissal motion.”

Despite that favorable judgment, the plaintiff filed again in Virginia.

“It felt much like Groundhog Day,” Halberstadter said, “but the doctrine of res judicata prevents repetitive bites at the apple, so we got another dismissal.” Johnson v. Knoller, 20-CV00312 (E.D. Va., filed May 1, 2020).

“I can’t take credit for a stunning victory,” Halberstadter said, “but I don’t think I’ve seen anything like this plaintiff’s tenacity.”

In September, Halberstadter wrote about a persistent problem in creative adaptations of factual accounts: “Developing television or motion picture scripts based on the depiction of real events, a constant concern is how to show the writer’s speculation or conjecture about what happened.”

“If the viewer can take it as a real account and not speculation, you can be open to a claim of false portrayal,” he added.

He based his analysis on a federal appellate rejection of Stormy Daniels’ defamation suit against former President Donald Trump.

A panel held that Trump’s words were non-actionable opinions.

“A big part of my behind-the-scenes job is to find creative ways to signal speculation in scripts to avoid this issue, and it’s a lot of fun,” he said.

— John Roemer