Score a big win for Booth and Brennan! Fox will have to show Emily Deschanel, David Boreanaz and other executive producers on the Bones team a lot of money, if this new $179 million judgment holds. Fox isn't even contesting all of it, so it sounds like the group should at least have more than $50 million to split between them.
Bones fans are probably at least vaguely familiar with this profit participation case, since lawsuits were first filed back in 2015. Bones ran from 2005 to 2017, so the suits were raging during the show's run. First, Bones executive producer Barry Josephson sued Fox for allegedly stiffing him out of his rightful profit participation. A week later, Bones executive producer Kathleen Reichs and stars Emily Deschanel and David Boreanaz filed their own lawsuit saying they were also cheated out of contractually-owed profits for years.
The Bones team ultimately consolidated their two cases, and spent the past three years in arbitration and mediation with 20th Century Fox Corp, Fox Broadcasting Co, and Fox Entertainment Group.
Fast-forward to February 2019, and we now have an award ruling. The Hollywood Reporter shared details on the expansive 66-page ruling by arbitrator Peter Lichtman. At $179 million, it's the second-largest award in TV history, after Disney was told to pay $319 million over Who Wants to Be A Millionaire profits in 2011.
Arbitrator Peter Lichtman's ruling slammed Fox for taking "a cavalier attitude toward its wrongdoing" and showing a "company-wide culture and an accepted climate that enveloped an aversion for the truth." He also called out some Fox executives who "appear to have given false testimony in an attempt to conceal their wrongful acts." Burn!
The arbitrator was clearly unhappy with Fox. He said it was "audacious and quite frankly astonishing" that Fox would suggest the Bones stars "should somehow be grateful for what they did receive" in their large paychecks to be on the show, "instead of focusing on what they were deceived and cheated out of."
Fox had maintained through the years that paying more for Bones would've led to the end of the show. But the arbitrator found no evidence for that, compared to other Top 20 hit shows. As he wrote, "Had Fox performed its contractual obligations, it would have looked to House as the comparable program, negotiated fairly, and paid the license fee accordingly."
As THR noted, the ruling also has potential ramifications for Hulu and other streamers; Hulu's licensing deal with Fox was called out as fishy, and Bones probably wasn't the only series given to Hulu (or other streamers) under similar circumstances. The arbitrator was shocked that Fox signed both sides of its agreement to license rights to Hulu. He found it to be a clear breach of Fox's obligations to distribute the series in good faith that the Fox studio producing Bones allowed its parent company to exploit streaming rights and license those rights to Hulu without getting much in return. He called out the "self-dealing" and "conflict of interest."
In terms of where the award number came from, according to the arbitrator, $114 million would have been added to the gross receipts of Bones for its exploitation on network television. That would've given about $15.5 million in profit payments to the executive producers and stars. Further damages of around $7 million were added for the series being undersold in the United Kingdom, Italy and Spain. Then there's Hulu. The arbitrator decided Bones should've been getting an episodic fee of $685,000 on Hulu -- a number he arrived at through comparisons to what CBS got for Elementary, Blue Bloods, and CSI -- resulting in $10.1 million.
The actual damages -- including interest, attorneys' fees, arbitrator costs -- were totaled to $50,240,048, plus huge punitive damages in the whopping amount of $128,455,730.
All together, the brought the total to $178,695,778.
Of course, Fox is not happy and they plan to appeal. A statement from 21st Century Fox reads...
The ruling by this private arbitrator is categorically wrong on the merits and exceeded his arbitration powers. Fox will not allow this flagrant injustice, riddled with errors and gratuitous character attacks, to stand and will vigorously challenge the ruling in a court of law.
Fox is apparently contesting the $128.5 million punitive damages, but not contesting the $50.2 million in non-punitive damages.
The Bones team was understandably pleased with the award; here's a statement from one of the attorneys, Dale Kinsella:
This is a tremendous victory for the Bones profit participants who created and starred in the longest-running drama series to air on the Fox network. Fox’s fraudulent conduct toward the series’ creators and stars, perpetrated over many years, has finally been brought to light, and Fox has been held accountable for its actions. This award—exposing Fox’s self-dealing and the harm it visits on profit participants—represents a victory for not only the Bones profit participants, but for all creative talent in the television industry.
Here's a statement from John Berlinski, who represented Emily Deschanel, David Boreanaz and Bones EP and author Kathy Reichs (via Deadline):
What we have exposed in this case is going to profoundly change the way Hollywood does business for many years to come. Our clients’ creativity and hard work brought Fox its longest-running and most profitable drama ever. Now Fox needs to – at long last – do the right thing and pay them what they are owed.
If you have the time, interest, and legal mind to understand what the heck is written, go ahead and check out Deadline's copy of the full award ruling.
So, no matter what, the Bones team is apparently getting that $50.2 million in non-punitive damages. We'll have to see what happens with Fox's appeal on the $128.5 million.
Bones is not the only show or film to be hit with profit participation lawsuits. A Gilmore Girls producer sued last year, and the This is Spinal Tap team sued for $400 million. Of course, original Walking Dead showrunner Frank Darabont has infamously been battling AMC over profits, among other things, for many years.
Bones may be off the air, but this profit participation and streaming ruling could affect some of the many TV shows that are airing right now in midseason 2019.
