Expert Witness Profiler

Tag: Entertainment

  • Entertainment Industry Expert Not Allowed to Opine on a Party’s Mental State

    Entertainment Industry Expert Not Allowed to Opine on a Party’s Mental State

    In this breach-of-contract suit stemming from an exclusive license to present a live touring show of the popular children’s show, CoComelon, Plaintiff/Counterclaim Defendant CCM Touring LLC and Counterclaim Defendant S2BN Entertainment Corporation (“S2BN”) (collectively, the “CCM Parties”) sought to exclude the opinions and testimony of Eric Grilly and George Wade, experts for Defendant/Counterclaimant Moonbug Entertainment Ltd. and Counterclaimant Treasure Studio Inc.

    The Moonbug Parties also sought to exclude certain opinions and testimony of Michael Olsen and Felix Barrett, experts for the CCM Parties.

    Entertainment Industry Expert Witnesses

    Eric Grilly is a seasoned live entertainment executive who has worked in the live entertainment industry for over twenty years and in the live family
    entertainment and touring section for over fifteen years.

    Want to know more about the challenges Eric Grilly has faced? Get the full details with our Challenge Study report.

    George Wade is an expert in the licensing of intellectual property rights, specializing in live entertainment licensing practices. Wade has over 44 years of experience in the location-based entertainment industry and has worked in the acquisition and licensing of intellectual property for location-based entertainment applications for the past three decades.

    Discover more cases with George Wade as an expert witness by ordering his comprehensive Expert Witness Profile report.

    Michael Olsen has worked exclusively in the entertainment industries since 1979, during which time he has worked on more than 500 live shows and productions and gained experience in virtually every facet of a live production.

    Get the full story on challenges to Michael Olsen’s expert opinions and testimony with an in-depth Challenge Study.

    Felix Barrett is the founder and artistic director of a British theater company that specializes in participatory and immersive productions and is well-known for creating “Sleep No More,” a retelling of Shakespeare’s “Macbeth.”

    Want to know more about the challenges Felix Barrett has faced? Get the full details with our Challenge Study report.

    Discussion by the Court

    A. Eric Grilly

    First Opinion

    First, the CCM Parties argued that Grilly’s opinion as to Moonbug’s lost royalty revenues is actually a “lost profits” opinion that should be excluded because it “improperly relies on speculative financial projections instead of the actual financial performance of two live CoComelon tours.”

    Grilly based his opinion on financial projections created by others, which he did not independently verify in the context of projecting future earnings for a new business venture.

    To be sure, an expert’s use of assumptions or projections in calculating lost profits is not necessarily fatal, if the assumptions or projections are reliable. But, here, Grilly took no steps to independently assess the reliability of the projections prepared by CCM or Round Room, or the assumptions relied on in preparing those projections.

    Second Opinion

    Next, the CCM Parties attacked Grilly’s opinion that CCM failed to use its best endeavors to tour CoComelon Live. Grilly opined that CCM failed to tour CoComelon Live consistent with industry practice concerning the frequency of live family entertainment shows.

    However, testimony about industry norms and customs in this regard is likely to help a jury evaluate the ultimate issues in the case, not confuse it, because Moonbug contends that the failure of CCM to use its best endeavors to tour—i.e. to tour consistent with industry practice—amounts to a breach of the agreement or a breach of the covenant of good faith and fair dealing. 

    Third Opinion

    Additionally, the CCM Parties misstate Grilly’s testimony when they argue that he opines that CCM breached the best endeavors provision of the CoComelon Live Agreement. But Grilly never opined that CCM breached the agreement. Nor does Grilly opine that CCM breached any best endeavors clause in the contract. Instead, Grilly offered testimony about the industry custom for the frequency with which live family shows typically tour and ultimately opines that CCM’s touring plan did not align with those industry practices.

    Consequently, the Court found that Grilly’s testimony on whether CCM used best endeavors to tour CoComelon Live—as understood in industry parlance—is admissible.

    Fourth Opinion

    Finally, Grilly opined that CoComelon Live did not make a profit because its operational expenses were too high. Moonbug concedes that Grilly “cannot testify” that the high operational costs “is the reason that CCM ultimately stopped touring.”

    But Grilly has not opined that the high operational costs are the reason CCM stopped touring. Instead, Grilly opined that the high operational costs were the reason the tour did not make a profit and was not successful.

    That the tour’s operational costs were high and led to financial losses is well within Grilly’s area expertise and permissible expert testimony.

    In sum, the Court found all of Grilly’s opinions are admissible, save for his lost royalties opinion.

    B. George Wade

    First Opinion

    First, the CCM Parties attacked Wade’s assertion that “the central question is whether CoComelon Party Time should be considered a singular immersive experience or classified as a live theatrical offering.” The CCM Parties argued that this question is irrelevant and will not assist the trier of fact.

    Wade opined that CoComelon Party Time is “a singular immersive experience” and not a “show.” He opined that industry practice distinguishes between “show” rights and “immersive” rights. Wade’s opinion goes to whether CoComelon Party Time is of the same ilk of entertainment offering as CoComelon Live, such that it was a “show” and thus part of the exclusive rights granted under the agreement. Therefore, the Court found that Wade’s testimony is relevant and helpful to the jury.

    Second Opinion

    Second, the CCM Parties aver that Wade “improperly interprets the evidence” by opining that Moonbug mitigated the risks of consumer confusion through “routing insulation.”

    The CCM Parties provided no authority to support their contention that Wade’s opinion about Moonbug’s risk mitigation (or lack thereof) must be excluded because he purportedly ignored two pieces of evidence favorable to the CCM Parties. To the contrary, an expert need not agree with “witness testimony concerning the objects of his analysis.”

    Third Opinion

    Third, the CCM Parties contended that Wade improperly opined on a party’s mental state. Specifically, the CCM Parties pointed to Wade’s opinion that “S2BN appears to be aware of the distinction between theatrical shows (like CoComelon Live) and immersive experiences (like CoComelon Party Time and CoComelon Play Date) and how they utilize different rights.”

    Wade opined that the CCM Parties “appeared to be aware” of the distinction between theatrical shows and immersive experiences in a way that is “consistent with industry custom.”

    This opinion is impermissible because Wade goes beyond the bounds of explaining what another party in the relevant industry would have commonly understood based on industry practice. Instead, Wade extrapolates from the factual record that he believes the CCM Parties were purportedly aware of a distinction between a show and an immersive experience, relying on documents for which he has no personal knowledge. The Court held that Wade is speculating on a party’s mental state and usurping the jury’s role of interpreting the evidence and drawing inferences and conclusions from that evidence.

    Fourth Opinion

    Finally, the CCM Parties faulted Wade for including “irrelevant and unhelpful information” in his report, such as a historical overview of amusement parks, a discussion of the impact of the industrial revolution on amusement parks, a discussion of the impact of virtual and augmented reality on immersive experiences, and a forecast of the future of location-based entertainment, among other things.

    Experts may explain background material to the extent it is relevant to their analyses and useful to the jury, and any excessive factual narration can be curtailed at trial.

    Wade’s testimony in this regard offers a backdrop of the industry at issue—the live entertainment or “location-based entertainment industry”—and provides context for his opinion as to the regular customs and practices of that industry.

    Of course, to the extent Wade at trial provides such historical testimony and the testimony is excessive, duplicative, or irrelevant, the CCM Parties may object, but it is not a basis for exclusion at this stage.

    Accordingly, the Court found all of Wade’s opinions are admissible, except his testimony as to the CCM Parties’ awareness of the distinction between theatrical shows and immersive experiences.

    C. Michael Olsen

    Qualification

    The Moonbug Parties argued that Olsen is not qualified to opine on “licensing practices within the live touring industry” or “matters related to the actual planning of a tour (such as tour routing, touring cadence, or the meaning of ‘show’ within the industry and whether that meaning includes ‘immersive experiences’).”

    The Court held that Olsen’s general live entertainment industry experience, with regards to theatrical shows and concerts, coupled with Olsen’s specific experience at Round Room with live touring family shows specifically, suffice to permit him to testify as an expert here.

    Legal Conclusions

    The Moonbug Parties accused Olsen of providing improper legal conclusions concerning the interpretation of the CoComelon Live Agreement.

    Experts are permitted to testify about the “custom and usage” of terms in a particular industry. In addition to the customary usage of industry terms, experts may also testify about whether a party’s actions comport with industry customs and standards. However, Olsen overstepped his role by opining on a question for the jury—namely, whether Moonbug breached the right of exclusivity, rendering CCM’s decision to stop touring reasonable.

    D. Felix Barrett

    The Moonbug Parties attacked only Barrett’s third opinion—that immersive experiences implicate different rights from live shows—on the grounds that it is an improper legal conclusion.

    Barrett responded to Wade’s opinion, explaining that in his experience, immersive experiences and live shows do not involve separate rights unless there are express contractual provisions saying so.

    That opinion directly responded to Wade’s opinion that the two types of productions involve distinct rights, and it also addresses what Wade believes is industry practice. As the CCM Parties correctly argue, the Moonbug Parties cannot simultaneously argue that Wade is offering testimony about industry custom while attacking the CCM Parties’ expert as impermissibly offering a legal conclusion. At bottom, Wade and Barrett are both offering the same type of opinion about the industry custom surrounding the rights associated with two types of productions. Because Barrett exclusively discusses customs, standards, and generalities surrounding the rights associated with different types of productions, the Court found this testimony both helpful to the jury and admissible.

    Held

    • The Court granted in part and denied in part the CCM Parties’ motion to exclude the testimony of Eric Grilly and George Wade.
    • The Court granted in part and denied in part the Moonbug Parties’ motion to strike the testimony of Michael Olsen and Felix Barrett.

    Key Takeaway

    It is well settled that an expert cannot offer evidence about a party’s state of mind. An expert’s testimony must be directed to matters within the witness’ scientific, technical, or specialized knowledge and not to lay matters which a jury is capable of understanding and deciding without the expert’s help.

    Case Details:

    Case Caption: CCM Touring LLC v. Moonbug Entertainment Ltd.
    Docket Number: 1:23cv7116
    Court Name: United States District Court, New York Southern
    Order Date: March 27, 2026
  • Court rejects the Film Finance and Distribution Expert Witness’ opinion on substantial similarity citing lack of literary expertise in Copyright Infringement Suit

    Court rejects the Film Finance and Distribution Expert Witness’ opinion on substantial similarity citing lack of literary expertise in Copyright Infringement Suit

    In the legal case involving Nicole Gilbert-Daniels as the Plaintiff and Lions Gate Entertainment Corp., Starz Entertainment, LLC, Chernin Entertainment, LLC, Katori Hall, Liz Garcia, and Patrik-Ian Polk as Defendants, Plaintiff contended that Defendants’ television show, “P-Valley”, infringed on her copyright for her musical stage play, “Soul Kitten Cabaret” which led to a pivotal moment during a hearing on September 18, 2023.

    During this hearing, the Defendants moved to strike Plaintiff’s expert Rob Aft’s declaration, contending that its filing was untimely per the Federal Rules of Civil Procedure and was barred by the Court’s earlier order from July 5, 2023. However, the Court didn’t find these arguments convincing and declined to consider them further when reiterated in subsequent papers.

    Instead, the Court indicated its intention to focus on the substantive claims presented within the motion to strike.

    Film Finance and Distribution Expert Witness

    Rob Aft has substantial experience in the film and television business, with a particular focus on copyright ownership. For the past fifteen years, he has worked as the “main film consultant/lecturer for the UN’s World Intellectual Property Organization (WIPO).” He helps to organize and speaks at conferences around the world “on business topics related to film and TV.” He has written several books on copyright directed at professionals working in the film and TV industry. He has also been engaged as an expert in cases “involving COT [chain of title] and proper licensing of derivative works on multiple occasions.” All told, his experience in the “film finance/production/distribution industry” exceeds 33 years. Aft has also worked as an “independent financial consultant” and has run sales “at a number of independent production/distribution companies.” Aft’s previous work experiences have included “the negotiation of distribution agreements with major studios, revenue projection, contract negotiation/drafting and dispute resolution.” Id. He was also “very involved in the development and acquisition of content for sale, including chain of title . . . review.”

    Discussion by the Court

    In the evaluation of substantial similarity between the Plaintiff’s and Defendant’s works, the legal process involved a two-part test. The first part, termed the extrinsic component, focused on assessing the likeness between the Defendant’s work and the protectible elements within the Plaintiff’s work. This assessment was distinct from the probative similarities evaluation, specifically considering only the protectible elements while filtering out the non-protectible ones.

    The extrinsic test employed an objective approach, examining specific expressive elements such as plot, themes, dialogue, mood, setting, pace, characters, and sequence of events in both works. Notably, the Court clarified that, at this stage of the litigation, its assessment was solely centered on whether the extrinsic test for substantial similarity had been met.

    Furthermore, the Court highlighted the varying significance of expert testimony in cases of substantial similarity. It acknowledged that while an expert’s opinion could be particularly beneficial in some instances, in this specific case, which involved works targeting a general audience and dealing with easily understandable subject matter, expert testimony was deemed less critical. Both the Plaintiff’s and Defendant’s works were categorized as aiming at a broad audience and addressing subject matters comprehensible to the ordinary person, thus diverging from cases where expert testimony would hold greater relevance.

    Expert testimony  is admissible pursuant to Federal Rule of Evidence (“FRE”) 702 if it is helpful and reliable. Pursuant to FRE 702, a witness may offer an expert opinion only if they draw on some special “knowledge, skill, experience, training or education to formulate that opinion.”

    In the legal proceedings, the Defendants contested Aft’s qualifications as a literary expert. Both parties referenced a precedent set by the Court in the case of Gable v. Nat’l Broad. Co., where the Court excluded an expert report by David Nimmer, acknowledged as an “expert in the field of copyright law,” due to limitations in Nimmer’s ability to perform a literary analysis of two fiction works.

    The Court in Gable highlighted a crucial flaw in relying on Nimmer’s expertise for commenting on substantial similarity. It noted that despite Nimmer’s impressive legal credentials, there was a lack of evidence indicating his experience, knowledge, training, or education in the literary field. The absence of indications that Nimmer had worked in capacities such as film criticism, publishing, teaching English, editing, directing, writing fiction, or engaging extensively with literary works led the Court to conclude that his expertise did not extend to providing an expert literary analysis.

    The Court acknowledged that while comparing two fiction works might not demand highly technical skills and could be conducted without specific training, offering an expert literary analysis required some form of demonstrated experience or involvement in watching, reading, writing, comparing, or analyzing literary works, which Nimmer lacked.

    Defendants contested Aft’s credentials, paralleling the accusation made against David Nimmer in the Gable case, highlighting the absence of specific literary qualifications in Aft’s background. They argued that Aft lacked formal education or training in literature, comparative literary analysis, or creative professions like writing for film or television.

    In response, the Plaintiff asserted Aft’s extensive experience of 34 years involving the review, analysis, and comparison of numerous scripts, films, and literary works. They emphasized Aft’s role in advising on similarities between literary pieces in various professional contexts, such as evaluating Errors and Omissions coverage for film projects, providing opinions on chain of title, and advising on literary endeavors.

    The Plaintiff’s reliance on a specific language excerpt from the Gable case lacked important context. They argued that because Nimmer hadn’t alleged certain relevant facts, his testimony’s inability to be considered on substantial similarity was evident. However, the Court clarified that highlighting the absence of these crucial facts didn’t inherently imply that presenting such facts would have met the required standard for expertise. The Court indicated that to qualify as a literary expert, Aft needed to demonstrate expertise in literary analysis or writing akin to the illustrative examples listed in Gable.

    Upon scrutinizing Aft’s qualifications, the Court found the assessment less straightforward than in the Gable case. While Aft boasted over three decades of experience in the finance/production/distribution industry, these roles didn’t involve writing, instructing writing, or literary analysis. Nonetheless, the Plaintiff argued that Aft’s extensive experience in reviewing, analyzing, and comparing thousands of scripts and literary works over the years validated his qualifications as an expert in the field.

    In referencing the Counts v. Meriwether, 2015 U.S. Dist. LEXIS 173790, the Court acknowledged two experts, Mark Rose and Kathryn Arnold, as qualified to offer substantial similarity analysis. Rose held a Ph.D. in English literature, had extensive teaching experience, published books on literary subjects, and had been retained as a copyright infringement expert multiple times. Arnold, having worked in script development and reviewed numerous scripts, was also deemed qualified.

    In contrast, while recognizing Aft’s substantial experience in the entertainment industry involving various roles like negotiating agreements, assessing risks of production loans, and dealing with copyright elements, the Court aligned with the Defendants’ analysis. The Court reasoned that mere extensive script review, a common aspect of the film industry, wasn’t sufficient to qualify Aft as an expert on substantial similarity.

    The Court emphasized that relying solely on years of experience in the entertainment industry to define expertise would undermine the gatekeeping function of standards like FRE 702. It highlighted that the case didn’t necessitate expert opinion significantly and concluded that Aft’s qualifications didn’t meet the criteria for expertise on substantial similarity.

    Clarifying its decision, the Court explained that it didn’t base its conclusion on whether Aft specifically specialized in performing substantial similarity analyses for copyright infringement. Rather, the decision stemmed from Aft’s lack of expertise in the craft of writing or the field of literary analysis. The ruling, therefore, centered on Aft’s insufficient relevant qualifications rather than a blanket exclusion of expert testimony.

    The Defendants contested the admissibility of Aft’s report, alleging that he didn’t apply the Ninth Circuit’s extrinsic test for substantial similarity. This test mandates filtering out unprotectable elements before comparing the works in question.

    The Court acknowledged that Aft’s description of performing the extrinsic test was brief and somewhat implied. Aft indicated that he reviewed other films in the same genre to identify common tropes or scenes, outlining specific similarities between the Plaintiff’s and Defendants’ works that weren’t present in other films he reviewed within the genre. Although the analysis was concise, the Court highlighted that brevity alone didn’t render an expert report deficient.

    While Aft’s report primarily focused on countering the Defendants’ portrayal of the works, the Court refrained from concluding that Aft hadn’t conducted a substantial similarity analysis. Despite the emphasis on rebutting the Defendants’ characterization, Aft’s report centered on comparing elements that he deemed protectible, indicating an implicit filtering out of those elements he considered unprotectable. The Court noted that “a comparison that includes both unprotectible and protectible elements is invalid under the extrinsic test and is legally irrelevant” renders an expert report inadmissible which was not the case with Aft’s report. But that did not not change the Court’s finding that Aft is not qualified to offer an expert opinion on that analysis.

    The ongoing dispute between the parties regarding the usefulness of Aft’s report echoes their prior arguments about his qualifications and adherence to the Ninth Circuit’s extrinsic test for substantial similarity. The Court reiterates its stance on the limited value of expert testimony in cases where works are aimed at a general audience and deal with easily comprehensible subject matter.

    While acknowledging the marginal potential usefulness of expert testimony, the Court underscored a particularly unhelpful aspect of Aft’s report. A substantial part of Aft’s declaration delved into what he termed a “practical question” concerning the risk of a lawsuit related to licensing underlying rights. He posed a hypothetical scenario wherein the Plaintiff pitched her work in a world where the Defendants’ work already existed, concluding that a production company interested in the Plaintiff’s work should expect a lawsuit. However, the Court deemed this portion irrelevant and unhelpful to the substantial similarity analysis.

    Highlighting that the consideration of the likelihood of litigation wasn’t within the scope of the extrinsic analysis of substantial similarity, the Court concluded that this section of Aft’s report complicated matters by venturing beyond the necessary focus of the analysis.

    Held

    The Court granted Defendants’ request to strike the declaration of Plaintiff’s expert Rob Aft.

    The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

    Key Takeaways:

    In this case, the Court delved into the qualifications and relevance of expert testimony, particularly regarding substantial similarity analysis. It scrutinized experts’ backgrounds to ascertain their eligibility to provide such analysis, emphasizing the need for expertise in literary analysis or writing for individuals to qualify as literary experts in these evaluations. The Court highlighted that having a career in the entertainment industry or reviewing scripts, while valuable, might not suffice for expert opinion on substantial similarity. It stressed the importance of specific expertise in literary analysis or writing for these cases. Additionally, the Court evaluated whether experts adhered to the Ninth Circuit’s extrinsic test for substantial similarity, emphasizing the focus on protectible elements and the implicit filtering of unprotectible elements in expert reports. The Court noted that expert testimony might hold limited value in cases involving works aimed at broad audiences and dealing with easily understandable subject matter, questioning the necessity and relevance of such testimony in these instances. Furthermore, the Court highlighted the importance of keeping expert testimony within the scope of the extrinsic analysis of substantial similarity, as deviation into irrelevant areas could render portions of an expert report irrelevant to the legal analysis. Ultimately, the decision underscored the need for specific expertise in literary analysis or writing for offering expert opinions on substantial similarity, as well as the significance of keeping expert testimony focused on relevant aspects of the legal analysis.