The Ratings Buffet for the week ending June 30th

June 30, 2017

Welcome to another week of The Ratings Buffet.  We have been a little late with posting this week.  Note the TUF Episode rating is down from last week but up from TUF 24’s Episode 11.

Saturday

Bellator 180 on Spike TV 8:00-10:00pm ET:  758,000 viewers

Bellator 180 on CMT:  143,000 viewers

HBO Boxing Replay Ward/Kovalev2 at 10:00pm ET 752,000 viewers/316 viewers in the A18-49 demo

Sunday

UFC Fight Night 112 Prelims on FS2 at7:00pm ET: 319,000 viewers/157,000 in the A18-49 demo

UFC Fight Night Main Card on FS1 at 9:00pm ET:  819,000 viewers/427,000 in the A18-49 demo

Monday

WWE Monday Night Raw on USA

8:00pmET 2.887 million viewers

9:00pm ET 3.092 million viewers

10:00pm ET 2.951 million viewers

Tuesday

WWE Smackdown on USA at 8:00-10:00pm ET 2.603 million viewers #1 in cable for Tuesday night.

UFC Fight Flashback on FS1 at 8:00-8:30pm ET: 130,000 viewers

Wednesday

TUF 25 Episode 11 at 10:00pm ET 369,000 viewers

TUF Talk on FS1 at 11:00pm ET 121,000 viewers

Lucha Underground on ElRey 8:00pm ET 112,000 and immediate replay at 9:00pm ET drew 77,000 viewers

Thursday

Impact Wresting on Pop at 8:00pm: 268,000 viewers

The Ratings Buffet for the week ending June 23rd

June 23, 2017

Welcome to another week of The Ratings Buffet.

Saturday

Golden Boy Boxing on ESPN2 11:00pm-1:00am ET: 232,000 viewers

Monday

Raw on USA

WWE Raw 9:00pm ET: 3.201 million viewers; 1.09 rating A18-49

WWE Raw 10:00pm ET: 3.029 million viewers; 1.07 rating A18-49

WWE Raw 8:00pm ET: 3.075 million viewers; 1.05 rating A18-49

Bellator: Fedor Returns on Spike TV 11:00pm 11:30pm ET: 226,000 viewers; 0.07 rating A18-49

Tuesday

USA: WWE Smackdown 8:00pm-10pm ET: 2.597 million viewers; 0.85 rating A18-49

Wednesday

FS1:  TUF 25 10:00pm-11:00pm ET: 456,000 viewers; 0.20 rating A18-49

FS1:  TUF Talk 11:00pm-11:30pm ET: 134,000 viewers; 0.06 rating A18-49

El Rey: Lucha Underground:  111,000 viewers; 0.02 rating A18-49/52,000; 0.02 rating

Thursday

Impact Wresting on Pop TV: 8:00pm-10:pm ET: 342,000 viewers; 0.10 rating A18-49

USPTO refuses registration of Broken Matt Hardy TM application

May 29, 2017

Matt Hardy was handed a potential setback from trademarking “Broken Matt Hardy.”  The USPTO issued an Office Action which is denying the process for the “Broken Matt Hardy” trademark application.  The good news is that Hardy has a chance to respond to the initial decision.

Hardy applied to register his “Broken Matt Hardy” gimmick with the United States Patent and Trademark Office on March 1, 2017.  Last week, the USPTO issued a response initially denying the Trademark.

Hardy identified the first use of the trademark from April 20, 2016.  With existing use of an applicant’s trademark, you must provide what’s called a “specimen.”  This is to show the use of the trademark in commerce and your prior use (of the trademark before applying with the USPTO).  But the digital images include two YouTube video images showing  the use of Broken Matt Hardy in two promotions, and the third is an “EventBrite” screenshots for tickets to a talk featuring “Broken Matt Hardy.”  While all of these show the use of the name, these do not give rise to a trademark.

The Office Action notes:

Personal names (actual names and pseudonyms) of individuals or groups function as marks only if they identify and distinguish the services recited and not merely the individual or group. In re Mancino, 219 USPQ 1047 (TTAB 1983) (holding that BOOM BOOM would be viewed by the public solely as applicant’s professional boxing nickname and not as an identifier of the service of conducting professional boxing exhibitions); In re Lee Trevino Enters., 182 USPQ 253 (TTAB 1974) (LEE TREVINO used merely to identify a famous professional golfer rather than as a mark to identify and distinguish any services rendered by him); In re Generation Gap Prods., Inc., 170 USPQ 423 (TTAB 1971)(GORDON ROSE used only to identify a particular individual and not as a service mark to identify the services of a singing group).

Matt Hardy USPTO Office Action by JASONCRUZ206 on Scribd


As an example of a successful trademark of a wrestler’s name, the WWE applied for the trademark of “Daniel Bryan.”  The WWE registered the character name as a “Service Mark” and a Trademark.

The specimen for the Bryan service mark is one from the talent roster on NXT.

The trademark specimen for Bryan included an image of the character toy action figure.

Payout Perspective:

The Broken Matt Hardy trademark application can still be successful if Hardy’s representatives amend the application to include a specimen showing a service mark using Broken Matt Hardy.  Of course, if that has not happened yet, they could always convert the application to an “Intent to Use” application which means they plan to use the trademark at some point in the future.  Notably, the Daniel Bryan Service Mark is a web site screen shot of his NXT bio whereas you can argue it is similar to what Hardy submitted.  Hardy should have six months from the date of the issuance of the Office Action to respond or the application will not go forward.

Anthem exec releases portions of Hardy contract in IP dispute

May 24, 2017

Ed Nordholm, Executive Vice President of Anthem Sports & Entertainment, sent out an email and attachment of portions of Matt Hardy’s contract related to the use of the “Broken Brilliance” creative which is sparking a potential Intellectual Property dispute between the Hardy’s and its former contractors.

MMA Payout obtained a copy of the along with members of the pro wrestling media.  The email sent out on Tuesday outlines the substance of communcations between Anthem (i.e., TNA Impact Wrestling) and the Hardy Brothers over the potential use of their “Broken” gimmick in WWE.  For those that have been following, the Hardy Brothers used the gimmick in Ring of Honor after leaving Impact Wrestling.  A cease and desist letter was sent to Ring of Honor and its distributors to prevent the Hardys to use their gimmicks while developed in Imp act Wrestling.

The email outlines the log of communications between Nordholm and the Hardy’s.  You can envision it being included in a declaration if this were to go to court.

  • March 10 – EBN speaks with executives at ROH about “Broken Brilliance” being used in ROH shows. I indicated willingness to provide an arrangement that would allow the creative to be used in ROH shows and encouraged ROH to have Matt speak with me if he wanted to pursue that discussion
  • March 11 – EBN spoke at length with Matt by telephone about the structure of an amicable arrangement for use of the Broken Brilliance creative
  • March 14 – Matt sent text message to Ed Nordholm at 4:05pm:

“Tried giving you a call, it rang & went busy. I’m open to working things out amicably as we spoke about. The lawyer who represent me is interested in seeing your offer. My lawyer’s email is {redacted} which you could send the offer to for review. Thanks.”

And I responded by text at 6:41 pm

“Thank you Matt. I was supposed to be [flying] into NYC today and am a little twisted. I will pull something together with [our] lawyers and try to get it over to your lawyer tomorrow or Thursday at latest“

  • March 16 – At 8:25 pm I sent an update text to Matt:

“Hi Matt. My lawyer got me a draft too late to get reviewed for today. I will look at it in the morning. Sorry for the delay”

And he responded at 9:16 pm

“Ok, he’s ready for it. Thanks for the update.”

  • March 17 – counsel for Anthem Wrestling delivered draft proposal to counsel for Matt Hardy
  • March 24 – counsel for Anthem Wresting followed up with Matt Hardy counsel requesting comments on the proposal
  • March 27 – counsel for Matt Hardy responds that they have been away and have not reviewed the proposal but will be back “in the next few days”

After which no further communication until

  • April 18 – counsel for Matt Hardy leaves a voice mail message for counsel for Anthem Wrestling asking to arrange a meeting
  • April 20 – EBN contacts WWE by email to determine veracity of internet rumours concerning WWE interest in Broken Brilliance
  • April 21 — WWE respond by email that there “is no interest on our end” {redacted email exchange attached}
  • April 21 – counsel for Matt Hardy sends a follow up message requesting a meeting
  • April 27 – lawyers speak to arrange a meeting
  • May 16 – lawyers meet but no agreement reached

In addition, Nordholm included relevant portions of the Hardy contract with Impact Wrestling.  The blue underlined sentences are from Nordholm’s copy.  It is done to highlight the terms which they argue rule this contract issue.   Notably, section C reflects that the Company owns all Performances, “free from any claims of ownership by the Contractor (i.e., Matt and Jeff Hardy) or any other party.  Section D notes the “Assignment of Works” is owned by the Company even if the contract is terminated.  Under the Original Intellectual Property and Merchandising Section B it notes that the Company shall be “free from any claims of ownership by the Contractor.”

Hardy Contract Extract by JASONCRUZ206 on Scribd

Payout Perspective:

As we opined in our post on March 30th, “Who owns your gimmick?”  The contract is the first thing that you have to look at when determining who owns the intellectual property created during the contracted relationship.  Was the contract legal?  It appears it is from what has been produced.  Next, the Independent Contractor Agreement reflects the fact that anything made while under contract is owned by the Company.  It’s quite unfair but not unusual.

The release seems like a way to avoid potential litigation over the Copyright issue.  Assuming the contract was signed by the Hardys and was valid at the time of signature, the provisions in the contract would favor TNA.  Clearly, what the company is angling toward is a possible license it can sell to the WWE for use of the gimmick.  MMA Payout will keep you posted.

Who owns your gimmick?

March 30, 2017

The subject of who owns a wrestling character’s gimmick came up earlier this month when Matt and Jeff Hardy left Impact Wrestling and appeared to take their characters they developed in the organization with them.

It was reported by Ryan Satin’s The Wrestling Sheet and Dave Meltzer that Impact Wrestling’s lawyers sent a cease and desist letters to independent wrestling promotion Ring of Honor and its distributors to prevent the Hardys to use their gimmicks developed and used in Impact Wrestling on a Ring of Honor PPV.  As a result, Matt and Jeff Hardy did not use their characters on the ROH PPV.  Rather, they were generic versions of the Hardy

Prior to the ROH PPV, the Hardys made a “surprise” appearance at a ROH show which may have tipped off Impact Wrestling that the two were going forward in using the gimmicks in another organization.  Impact Wrestling’s Ed Nordholm stated that the “Broken Universe” character(s) were created by the company’s creative team which would mean that the organization would have ownership rights.

Notably, Matt Hardy applied for the trademark rights to his character he used in TNA, Broken Matt Hardy on March 1, 2017.  The process for obtaining a trademark takes 8-10 months if there are no issues.

Still, the question is whether or not the Hardys can use the gimmick without repercussions from Impact Wrestling lawyers.

There are a number of scenarios to consider.

The first is what does the contract say.  One would think that the terms of their contract with Impact Wrestling would dictate who has control of the intellectual property, then again, TNA did not secure its right to the intellectual property rights by not filing for the trademark.  Since Hardy filed for the trademark, one would think that he might be in breach of his contract by attempting to assert his rights when/if they contracted with TNA.

But trademarks are just one issue to discuss.  Trademarks protect items that help define a company brand, or in this case, performers.  With a trademark, the Hardys can monetize the Broken Matt Hardy brand through selling t-shirts or other merchandise.

There is also the issue of copyright protection for the Matt Hardy gimmick.  A copyright protects “original works of authorships.”  For the most part, a copyright would protect the use of characters.  In this case, a copyright would be created through the Hardys’ gimmicks of Broken Matt Hardy and Brother Nero.

With respect to the copyrighted material, we assume like most professional wrestlers, they were classified as an independent contractor.  Thus, a “work for hire” scenario in which TNA would own the characters since the creation occurred during the Hardys employment would not apply.  Under the theory of “work for hire” an employee’s invention or creation would be owned by the employer considering that it was within the scope of employment.  Going back to the terms of the contract, usually, even if a worker is considered an independent contractor, the contractor would include a provision that would assignment of the intellectual property would fall in favor of the contractor.  In this case, TNA.

We note that a Copyright search, as of March 30, 2017, of “Matt Hardy” reveals Copyrights owned by the WWE in 2011.  A search for “Broken Matt Hardy” yielded nothing.  A search for Brother Nero (Jeff Hardy’s character, revealed no Copyright licenses.

The character issue is similar in nature to what occurred with the character Stephen Colbert when the individual Stephen Colbert left Comedy Central to replace David Letterman as the host of The Late Show on CBS.  Courts have found cartoon or fictional characters to be protected by copyright if they are sufficiently distinct and unique.  For instance, as this article points out Superman, Mickey Mouse and Tarzan are all protected under copyright law.

In comparison, the WWE tends to trademark its characters currently under contract.  It also trademarks phrases that it might market (i.e., make into t-shirts).  Notably, at Wrestlemania 29, held on March 29, 2015, Brock Lesnar used the phrase “Suplex City” during his match.  The next day, March 30, WWE filed for the trademark.  The WWE had trademarks for the Hardys WWE gimmick but let it lapse when they left the company.

As stated, the WWE holds some copyright licenses over Matt Hardy, but nothing related to the “Broken” gimmick he developed in Impact Wrestling.

Impact Wrestling “wrote off” the Hardys gimmick in an episode after the duo were released from their contract.

In response, on Matt Hardy’s YouTube page, the Hardys recreated their Impact Wrestling characters to give their own ending of their stint at Impact Wrestling.  Will Impact Wrestling take legal action for the Hardys’ latest reincarnation of their characters?  Probably not, although if this continues, you might see them flexing legal muscle.

While many might think this exercise in examination is ridiculous, it really is entertainment and intellectual property law wrapped up in the world of professional wrestling.  It does have serious legal repercussions when you think of the right to make money off the characters.  Will Impact Wrestling seek a cut of the Hardys future use of the gimmick if they go to WWE? Think about the independent wrestling shows and autograph shows in which they are paid a fee to attend.  Would Impact Wrestling want a cut of their appearance fees?  Will the WWE seek to acquire the gimmick if the Hardys make a return?  Does the loss of the gimmick hurt the future employment of the Hardys?  There are a lot of issues in the business-side in the creation of a gimmick.

Judge angered by WWE and Plaintiffs disregard for brief rules

March 29, 2017

A federal judge in Connecticut has issued a written smackdown of the litigation between the WWE and former wrestlers in a contentious lawsuit claiming that the company knew of information concerning a link between repeated head trauma and permanent neurological conditions that it exposed to its wrestlers.

The lawsuit involves former pro wrestlers Evan Singleton and Vito LoGrasso and World Wrestling Entertainment.  The Plaintiffs originally filed their lawsuit in Pennsylvania in January 2015.  They were among several former wrestlers that filed suit which were represented by the same lawyer and law firm.  The WWE successfully moved the case to Connecticut where the company is headquartered.  Judge Vanessa L. Bryant issued an order denying a motion for summary judgment from the WWE on the issue of fraud by omission claim brought by the wrestlers.

As part of the summary judgment motion, the parties must submit a statement of undisputed material facts (“SUF”) .  The party opposing the motion, has the opportunity to admit or deny the facts submitted by the moving party and then assert its own SUF.

The judge chastised both sides for submitting briefs that were longer than the rules allowed.  “[T]he parties have buried the Court in extraneous information, a substantial portion of which is argument and not fact.

The Court allows briefs for Motions for Summary Judgment to have a maximum limit of 46 pages.  However, WWE’s brief was 60 pages.  Plaintiffs submitted a 125-page statement in response to the WWE’s overlong brief.

As a result, the Court determined that the parties should refile its statements as they were “unnecessarily long and argumentative, and reviewing them in full would be wasteful of the Court’s scarce resources.”

The Court order both parties to submit revised Statement of Facts with a limit of 30 pages for the WWE and Plaintiffs to file a short response admitting or denying Defendant’s SUF and then filing 30 pages with its own disputed issues of material fact.

Order Denying Defendant’s MSJ by JASONCRUZ206 on Scribd

Payout Perspective:

The venom between the lawyers in this lawsuit is exemplified by the overlong briefs as they cannot agree on even the undisputed facts of this case.  As a requisite part of the filing, a concise statement is required.  Here, long does not necessarily mean effective.  Moreover, the order issued by the Judge shows she is not happy with either side.

Singelton and LoGrasso are the last WWE wrestlers standing as Judge Bryant dismissed similar claims brought by Russ McCullough, Ryan Sakoda, Matthew Wiese and William Albert Haynes, III as the Court concluded they didn’t wrestle with WWE after the company allegedly learned of a link between concussions and degenerative neurological diseases in 2015.

WWE and StubHub announce partnership

March 28, 2017

The WWE and StubHub announced a multi-year agreement making the ticket company the WWE’s exclusive ticket resale marketplace for fans in the U.S. and Canada.  The agreement comes in time for the WWE’s biggest event of the year, WrestleMania.

In addition to the WWE, StubHub has deals with Major League Baseball, the San Francisco Giants, the NBA’s Philadelphia 76ers, the NHL’s LA Kings and college football’s Alabama Crimson Tide.

Payout Perspective:

Although the arrangement was not spelled out in the news release, its likely StubHub buys a sponsorship with the WWE for brand placement at WWE’s events or on its web site.  If there is a sell-out at WWE events, it will direct its fans to the StubHub marketplace.  In all likelihood, StubHub will provide the WWE with consumer data from those that purchase on its site so that the WWE can use the information for marketing and promotion purchases.

WWE earnings for Q4 impress Wall Street

February 13, 2017

WWE set a 52 week record for stock price as it announced its end of year earnings for 2016 this past Thursday.

According to its earnings call, WWE Network subscribers grew 14% to 1.41 million paid subscribers. Revenue increased 11% to a company record $729.2 million.

Per a company press release, “[T]he Company reported Net income of $8.0 million, or $0.10 per share, as compared to a Net loss of $1.2 million, or a $0.02 loss per share, in the prior year quarter. Operating income increased to $13.9 million from an Operating loss of $1.5 million.”

Notably, television rights fees saw a big year-to-year increase (i.e., 2015-2016).  The television division ended the 4th quarter with $68.6 million as opposed to $55.6 million in 2015.  The network was up $43.7 million to $40.8 million.  Overall, revenue was up across all business divisions except PPV which is likely since the Network is taking over this segment.

As of this writing, the stock is up at $22.37 which is slightly below its 52 week high of $22.56.

Payout Perspective:

The earnings reflect that business is good for the WWE.  It is capitalizing on television rights fees while its Network continues to grow according to the numbers.

Netflix acquires rights to Hogan v. Gawker documentary

January 25, 2017

Netflix has acquired the worldwide rights to the documentary “Nobody Speak: Hulk Hogan, Gawker and Trials of a Free Press,” according to The Hollywood Reporter.  The documentary is about the case that brought down media company Gawker due to a short video it published of a sex tape involving the former wrestler.

As you may recall, a jury handed Hogan a $115 million verdict which brought Gawker and its founder Nick Denton to bankruptcy.  It also destroyed the career of A.J. Daulerio who has been negotiating a settlement with Hogan although he would like the right to write his own book (presumably) about the case.

The documentary is screening in the Sundance Film Festival’s U.S. Documentary Competition.

Payout Perspective:

The purchase of the rights reflects the aggressive nature of Netflix strategy to go after intriguing content.  It continues to pick up subscribers and its original productions are gaining notoriety. The case and its characters are primed for more than this documentary as you might expect more retellings of the trial.

Gawker pays $31M to settle Hogan lawsuit

November 3, 2016

The New York Times reports that Gawker Media Group and Hulk Hogan have settled Hogan’s invasion of privacy lawsuit for a reported $31 million.  Hogan prevailed at trial and a jury verdict awarded him a $140 million judgment but Gawker appealed the court decision.  Instead of pursuing the appeal, the parties decided to settle the dispute.

The jury verdict sent Gawker, the owners (at the time) of websites such as Jezebel and Deadspin, into bankruptcy.  The company and its web sites were sold out of bankruptcy to Univision Communications for $135 million this past August.  In addition, Gawker’s founder, Nick Denton, filed for personal bankruptcy.

The settlement includes $31 million plus a portion of the proceeds from any future sale of the Gawker.com domain per a filing in the U.S. Bankruptcy Court.

Payout Perspective:

Hogan will likely receive 1/3 of the reported $31 million as he will likely need to pay his attorney fees, costs and Peter Thiel who was reportedly funding the lawsuit.  Despite the fact that Hogan will not receive $140 million, the settlement prevents more legal costs and waiting.

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