13 November 2003

In another example of the excesses of marketing culture in this country, Rosie and Gruner+Jahr were essentially told by the judge to stop using the courts as a forum for playground antics. According to this morning's New York Times,

After each side in the battle of blame over the demise of Rosie magazine finished presenting its legal arguments, it took all of one minute for the judge to suggest yesterday that the contract dispute was little more than a schoolyard spat writ large. Justice Ira Gammerman of State Supreme Court in Manhattan said in effect that Gruner & Jahr USA Publishing and Rosie O'Donnell may deserve each other, but not monetary damages. "We're just dealing with bragging rights aside from attorneys' fees," Justice Gammerman said.

No Damages in Rosie Case, Judge Hints (13 November 2003) (phony paragraphing removed for clarity).

   The real problem here is that the marketing culture "created" a hybrid magazine out of the old McCall's that has appeal essentially only to other members of the marketing culture. This is the real problem with celebrity-focused products. As reprehensible and shallow as People, Us, and so on often are, they at least have some diversity in their focus. Martha Stewart's difficulties—and her eponymous magazine's—point out another pitfall of trying to exploit a single celebrity in a different forum.

   As the judge noted, however, the real problem is that both sides refused to take responsibility for their own actions and flawed concepts and used the courts to blame each other. How many people and organizations with real disputes have had their ability to obtain counsel or have their cases heard in a timely fashion impaired by the resources expended on this crap? Part of being a professional is sometimes (about 60% of the time in my practice) telling a potential client that resorting to the courts does not have a reasonable probability of resulting in a reasonable remedy for the actual harm suffered. The lawyers on both sides in this matter appear to have forgotten that: Gruner+Jahr (which, by the way, is a "bad actor" in terms of contracts offered to freelance writers) sued for $100 million in purported losses, and O'Donnell countersued for a substantial sum in purported losses. O'Donnell's actual investment was around $6 million, plus herself. Anybody who relies on a "current" version of a celebrity's "self" upon which to hang a nine-figure open-ended business enterprise is at the least intellectually challenged. The parties—and their lawyers—are advised to chill.