By Ben Sisario
Two months after HBO broadcast “Leaving Neverland,” which detailed allegations of child molestation against Michael Jackson, a legal dispute between the cable channel and the Jackson estate has intensified, with HBO firing back over claims that it violated an old contract by showing the documentary.
As HBO prepared to broadcast the two-part film in early March, the estate petitioned a California state court to compel an arbitration proceeding. The estate pointed to a 1992 deal between Mr. Jackson and HBO for a concert film from Mr. Jackson’s tour, in which HBO agreed that it “shall not make any disparaging remarks” about him.
The estate argued that the claims of abuse in “Leaving Neverland” violated that nondisparagement clause, and said it would seek $100 million in damages.
The legal questions involved may be esoteric, but they have drawn fiery comments from both sides. The dispute also highlights the film’s potential to affect the estate’s lucrative business selling music and drawing stage audiences in Las Vegas and, soon, on Broadway.
In a response filed in federal court on Thursday, lawyers for HBO called the estate’s petition a “poorly disguised and legally barred posthumous defamation claim.” They added that the film was protected by the First Amendment and that the 1992 contract had long since expired.
HBO’s lawyers, Daniel M. Petrocelli and Theodore J. Boutrous Jr., added that the estate’s suit “appears to be part of a transparent effort to bolster their publicity campaign against the documentary.” They asked the judge, George H. Wu of United States District Court in Los Angeles, to deny the request for arbitration.
The Jackson estate has complained vociferously that it was given no opportunity to respond to the film’s accusations, and sounded that note again on Friday. “HBO’s opposition clearly shows that they are afraid to have this matter adjudicated because it will expose the falsity of the documentary,” Bryan J. Freedman, a lawyer for the estate, said in a statement.
The estate was hundreds of millions of dollars in debt at the time of Mr. Jackson’s death in 2009. Since then, it has transformed itself into a billion-dollar business, through the sales of Mr. Jackson’s stakes in valuable song catalogs, as well as through a string of commercial deals, including a musical on Broadway, “Don’t Stop ’Til You Get Enough,” expected next year.
That musical has already drawn questions about how its esteemed creative team, the playwright Lynn Nottage and the choreographer Christopher Wheeldon, would deal with allegations of abuse involving Mr. Jackson. The issue was made murkier when the two told The New York Times last month that the two accusers in the film, Wade Robson and James Safechuck, “came across as very believable,” as Ms. Nottage put it. Both she and Mr. Wheeldon said they did not see themselves as “judge and jury,” about Mr. Jackson.
Last month, John Branca, a longtime lawyer for Mr. Jackson who is one of the executors of the estate, said at a panel discussion at Harvard Law School that “Leaving Neverland” had had a financial impact on the estate’s business. He said the estate was considering legal action against Dan Reed, the director of the film, but gave no details about the legal grounds for such a suit; a dead person, for example, cannot be defamed under the law.
“Because the laws of defamation are what they are, there is nothing we can do or say,” Mr. Branca was quoted as saying. “I’m going to suggest the law should be changed to protect the deceased at least for a period of time.”
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