Tennis documentary entangled in legalities
By Jane Musgrave
Palm Beach Post Staff Writer
Sunday, December 18, 2005
When Russian women last year won three out of four Grand Slam tennis championships, few were happier than two West Palm Beach documentary filmmakers.
"We nailed it," filmmaker Peter Geisler said recently, raising his fists in a classic we-beat-the-pants-off-the-competition pose.
'Anna's Army' DVD
What is IMGThe Cleveland-based sports management and marketing company dates to the early 1960 when its late founder Mark McCormack signed Arnold Palmer as his first client. It now employees more than 2,200 people in 70 offices in 30 countries.
While it represents top figures in all sports and entertainment fields, golf and tennis remain its stronghold. It represents dozens of golfers, including Tiger Woods, Annika Sorenstam, Colin Montgomerie and Se Ri Pak. It counts John McEnroe, Lindsay Davenport, Chris Evert, Roger Federer and Venus and Serena Williams among its tennis clients.
TWI is the world's largest independent television sports production and distribution company. It produces more than 6,500 hours of programming annually. It is investor in both The Tennis Channel and The Golf Channel.
• Training center
: It owns training academies for various sports, including the renowned Bollettieri Tennis Academy in Bradenton and the Evert Tennis Academy in Boca Raton.
It owns or has a financial stake in most of the major tennis tournaments worldwide.
McCormack was named "Most Powerful Man in Tennis" by Tennis magazine, "Most Powerful Man in Golf " by Golf Digest and in 1990 Sports Illustrated called him "The Most Powerful Man in Sport".
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The fist-pumping, however, reflects how he and his longtime friend Philip Johnston felt about their documentary on the rise of Russian women's tennis last year — not how they feel today.
After nailing what most agree is the biggest story in women's tennis, the two first-time filmmakers got nailed by IMG, the biggest sports management firm in the world.
"In effect, they've put us out of business," Johnston said.
The dispute pits the documentary-makers' First Amendment rights against IMG's rights to protect its clients.
To Johnston, who left a high-paying, high-pressure job with a New York City law firm to pursue his passion, the issue is simple: "If it's true that publicity rights trump First Amendment rights, if that's the case, you'll have history being written by the participants."
To folks at IMG, however, the issue has little to do with the rights of a free press and everything to do with the exploitation of one of their most valued clients, tennis phenom Maria Sharapova.
With long legs, long blond hair and blue eyes, Sharapova became an instant sensation when she won the 2004 Wimbledon championship at 17.
Her supermodel good looks, combined with her athletic prowess, catapulted her onto the covers of magazines ranging from Sports Illustrated
. Companies from Nike to Colgate-Palmolive to Canon lined up to hand her multimillion-dollar endorsement deals. With an estimated annual income of $100 million, she is among the world's highest-paid athletes.
Her obvious star power is why Geisler and Johnston included her in their documentary, said Jonathan Koch, a Tampa attorney who is representing Sharapova and IMG.
"It's a blatant attempt to exploit her image . . . to sell a product that has very little to do with her," he said.
That is why Sharapova and IMG are working to block the documentary's distribution.
Geisler and Johnston scoff at Koch's claims.
To make a documentary about the rise of Russian women's tennis and not mention Sharapova would be akin to making a documentary about fast-food restaurants and not mentioning McDonald's.
"She's the first Russian — male or female — to be ranked No. 1 in the world," Johnston said. "She's the one the media has focused on. She's the one people know who aren't even tennis fans."
She also was largely unknown outside the tennis world when the two friends in 2003 hatched the idea to launch Byzantium Productions with a documentary about a sport played by the rich in sunny climes gaining a foothold in a former communist country known for its brutal weather.
Chucking their careers
Blame it in part on the Sept. 11 terrorist attacks.
An institutional bond salesman who spent much of his career on Wall Street, Geisler watched many of his friends die when the hijacked jets crashed into the twin towers of the World Trade Center that were filled with people who worked in the stock and bond industry.
"It made me reevaluate what was important," he said.
Making money for money's sake — a keystone of life on Wall Street — didn't seem important anymore.
About the same time, Johnston was questioning his devotion to Skadden, Arps, Slate, Meagher & Flom, one of the largest and most prestigious law firms in the nation.
"My father was dying, my wife was pregnant with our first child, and I was working around 100 hours a week without time to spend with family who needed me," he said.
The two 37-year-olds, who met as kids when Johnston lived in Palm Beach and Geisler visited relatives on the island, both decided to chuck their high-powered careers.
Before he became a lawyer, Johnston worked as sports editor for The Moscow Times
, an English-language daily. He wanted to return to journalism and use his ability to speak Russian.
Geisler, who began videotaping when he briefly owned an art gallery in Manhattan, decided that it provided the creative outlet he was seeking.
Agreeing they had complementary skills that would enable them to team up to make documentaries, Johnston reached back into memories of his days in Moscow and remembered hearing about a small school that was training young women to become tennis stars.
Both avid tennis fans, they knew Russian teenagers were working their way up the junior rankings. The project seemed an ideal one to launch their business from their new homes in Palm Beach County.
Beginning in October 2003, they traveled back and forth to Russia, interviewing those associated with the small club that had produced Anna Kournikova, Sharapova's much-vaunted predecessor in the world of glam tennis.
'Anna's Army' born
Kournikova, whose beauty, style and ability to beat top players captivated the world soon after she turned pro in 1995 at age 15, gave the two the title for the documentary, Anna's Army
The Spartak Club, which boasts one indoor court, also produced 2004 French Open champion Anastasia Myskina and runner-up Elena Dementieva. Dementieva was also a runner-up in last year's U.S. Open, which was won by fellow Russian Svetlana Kuznetsova.
In addition to interviewing top-ranked Russian tennis stars, the filmmakers flew around the world, interviewing other top players, such as former No. 1-ranked Belgian Justine Henin-Hardenne. They talked to former greats, including Chris Evert, Billie Jean King and Martina Navratilova.
Tennis coaches, such as Nick Bollettieri, who coached many of the Russian girls at his renowned academy in Bradenton on Florida's west coast, also weighed in on what's behind the Russian invasion.
"One of the reasons you have all these Russian players . . . is because of Anna Kournikova," said King, the grande dame of women's tennis. Like others, she said Kournikova showed Russian girls and their parents that they could leave the country, play tennis and make money — lots of it.
But as the documentary points out, the reasons tennis has gained a stronghold in Russia are not as simple as the popularity of one beautiful woman who — at least briefly — could smash winners against some of the world's best.
The filmmakers obtained historical film footage showing Czar Nicholas II and his wife, Alexandra, playing tennis. War and Peace
author Leo Tolstoy, they discovered, was president of Moscow's first tennis club.
When the Communist Party seized power, tennis was branded a bourgeois sport and fell into disfavor. It wasn't until Nikita Khrushchev visited England in 1957 that Russian players were permitted to compete in Wimbledon. But most Russian players still were barred from traveling abroad to compete on a world stage.
When the Berlin Wall fell, however, so did such prohibitions.
Women's tennis received its biggest boost when Boris Yeltsin became Russia's first democratically elected president in 1991. An avid — if not skilled — player, he adopted the young female tennis players, cheering them on at matches and hugging "his girls."
After Johnston and Geisler spent 18 months traveling, interviewing, filming and editing, the DVD was finally ready for release in May.
It was greeted warmly by writers at Sports Illustrated
and various tennis magazines. A broadcast on a national Russian television network was well-received.
Geisler and Johnston figured they were on their way.
They found a company in tennis-crazed Japan to manufacture and distribute the DVD there.
It was to be released Dec. 9. The two fledgling producers began planning a very merry Christmas.
A letter from IMG
In late September, they got a letter from a lawyer at IMG.
"Your development and dissemination of the documentary, film and DVD, all being commercial products, using Ms. Sharapova's identification without obtaining the right and license to do so from SW19 Inc. (her corporation) or Ms. Sharapova herself, is an infringement of her personal rights, privacy rights and common law trademark rights," wrote IMG attorney Julie Lewis. "Such infringement subjects you and your company to serious liability and will not be tolerated."
The letter was a shock, Johnston said.
Unlike the other Russian tennis players, Sharapova had refused their requests for interviews. However, they got credentials from the Women's Tennis Association for some matches and asked her questions along with other members of the press.
The press conference interviews, along with film footage of her provided by the WTA and others, were incorporated into the DVD.
Johnston said he suspects IMG's threats were fueled by concern over its own Sharapova video. Its video was to debut in Japan on Dec. 22 — three weeks after Anna's Army
was to hit the market.
Koch, who represents Sharapova and IMG, admits the prospect of competing videos spurred the giant corporation to act.
IMG sent a letter and dispatched Japanese attorneys to the firm that had agreed to distribute Anna's Army
, said Martin Reeder, an attorney representing Johnston and Geisler.
"They threatened severe legal sanctions if they did not stop distribution of the DVD in Japan," said Reeder, who also represents The Palm Beach Post.
The planned Dec. 9 release of Anna's Army
"It's not on sale now, and at the moment there's no prospect of it going on sale," Reeder said. "The Japanese distributor is frightened."
Reeder last month filed a lawsuit in U.S. District Court in Miami, claiming IMG's actions violate Johnston's and Geisler's First Amendment rights.
"The First Amendment lets people distribute information as long as they obtain images in a lawful manner," Reeder said. "I don't think there can be any serious question that Byzantium is not entitled to make and distribute this documentary."
Koch said the Japanese version of Anna's Army
differs from the original. A large picture of Kournikova on the cover has been reduced to make room for a large picture of Sharapova.
In addition, 10 minutes of "bonus" footage of Sharapova has been added. Even the name has been changed. The Japanese version is simply Russian Women's Tennis
The changes make it clear that Johnston and Geisler are simply trying to exploit Sharapova for their personal gain, Koch said.
Claims that the video is protected by the First Amendment may prove to be meaningless, he said.
"There's no reason to believe the U.S. Constitution applies in Japan," he said.
Japan also has far different privacy laws — differences that will be left up to IMG's Japanese attorneys to sort out.
IMG has not tried to stop them from distributing the video on their Web site or gone after those who are selling it on other sites, such as amazon.com. But the threats have a chilling effect, scaring off other would-be distributors, Geisler said.
And, he said, with offices throughout the world, IMG has the ability to fight them country by country.
Koch agreed. "Both parties are better off resolving this (out of court)." But, Geisler and Johnston said, some of IMG's demands are outrageous.
While IMG has focused on the advertising and marketing of the documentary, it also has claimed that it can dictate the content.
"The whole thing is repugnant," Johnston said.
So even as Geisler and Johnston begin their next project, a documentary about Russian chess player-turned-presidential candidate Gary Kasparov, they worry about the future of the venture that once held such promise.
Johnston said he is teaching tennis lessons 20 hours a week at the public courts in Palm Beach to support his wife and two young children. Geisler hopes his savings account holds out.
The only good news is that Johnston can put his legal training to good use.
"I never thought I'd be reading cases again," he said.