OTR Interviews

'Duck Dynasty' cast versus A&E: Who would have the legal advantage?

Does patriarch Phil Robertson and the members of 'Duck Dynasty' have any legal leg to stand on agaainst A&E if the show ends over offensive, anti-gay comments?


This is a rush transcript from "On the Record," December 23, 2013. This copy may not be in its final form and may be updated.

GRETA VAN SUSTEREN, FOX NEWS HOST: The future of "Duck Dynasty" is up in the air. Phil Robertson's family saying they cannot imagine the show going forward without their patriarch. But is that decision really up to the family or could they land in a legal mess.

Entertainment lawyer, Steve Olenick, joins us.

Good evening, sir.

STEVE OLENICK, ENTERTAINMENT ATTORNEY: Happy holidays. Thanks for having me.

VAN SUSTEREN: Same to you.

So I take it that there is probably something called a morals clause in this contract, both ways. They usually are in these entertainment contracts. How do you define morals in these morals contracts? What does it mean? Does it mean more than we just don't like your opinion?


OLENICK: Well, not exactly. Even though this is a bizarre situation, it's very simple. A&E's perspective is, if they have a morals clause that is very broadly drafted -- in which it is, because if they want to get rid of him, it's like an at-will contract, goodbye, Phil, you are fired -- versus if there is a reverse morals clause, whereby Phil has a morals clause in his agreement with A&E, that allows him to actually rip up the contract if they do something bad.

VAN SUSTEREN: All right.

OLENICK: So, essentially, it's -- you know, it's all contract. As you know, it's a negotiation. This is about money.

VAN SUSTEREN: Can you say A&E -- I assume, it's a morals contract. Like I said, morals clause, there almost always is in all these kinds of contracts. Can you say A&E waived it by virtue of the fact that even after they suspended him, they continued to air him over and over and over and over again on these marathons?

OLENICK: Absolutely not. I would argue no. It's a broadly drafted agreement. I have seen enough of these where -- it's essentially, you can do something bad and they can get rid of you.


OLENICK: And so I would definitely think that it's broad. So they're going to.

VAN SUSTEREN: I can't imagine that. I can't imagine that. Because the whole idea of a morals clause is that you have said or done something that fully embarrasses us, so we no longer want to be part of you, or you have done something that we believe is immoral. How in the world you can stand on that argument, how could A&E stand on that when making like -- they can't put them on the air enough now to get every last squeeze, every last dime out of this? I can't imagine that they would be the least bit sympathetic or believable, A&E?

OLENICK: I don't think they are. I think essentially they are going to say, you did something that we exactly didn't want to be affiliated with, we don't want to be a part of it, goodbye. And I think, from Phil's stance, he is going to say well, not yet.

VAN SUSTEREN: I would sue for breach. I would sue A&E for breach right there on the spot if they did that, for having done that. But let me ask you another question.


VAN SUSTEREN: If they change the name to "Duck Dynasty" to duck hunting --


-- because I assume A&E holds -- owns "Duck Dynasty."


VAN SUSTEREN: -- if -- at the end of their contract, they could just move it to another network and call it something else, right? They don't own the reality show themselves but more the name not the concept?

OLENICK: No, no. They will hold the intellectual property. Intellectual property will be everything associated with this. So if there is any type of theme, slogan or anything associated with this, they can't shop it over to someone else and them pick it up. That's a huge lawsuit waiting to happen.

VAN SUSTEREN: All right. Well, I'm going to go dig a little deeper on this. I think A&E has waived any ability to get rid of Robertson on a morals clause because they are making -- you know, they are not scandalized by it, so I don't see how they could possibly invoke it as a breach of contract.

But anyway, that's just my thought, if I were the judge.

But anyway, Steve, thank you for joining us.

OLENICK: Thank you for having me.