The Journal of Sports and Entertainment Law recently sat down with Josh Berman, the co-creator and show runner of the new ABC show Notorious, to discuss current issues in entertainment law. Prior to his work on Notorious, Mr. Berman was an executive producer on CSI: Crime Scene Investigation, a consulting producer on the Fox television crime drama Bones, and was the creator and show runner for the Lifetime series Drop Dead Diva. Mr. Berman holds a degree in Public Policy from Princeton University, Law and Business graduate degrees from Stanford University, and a Masters in History from Sydney University where he was a Fulbright Scholar.
The interview was conducted by Loren Shokes (Class of 2017), the Executive Editor of Online Content and the Online Interview Editor for the Harvard Journal of Sports and Entertainment Law. The interview is part of JSEL’s interview series with lawyers in the entertainment and sports field that will be featured on JSEL’s website. It has been edited for clarity.
**Please note that, throughout this interview, Mr. Berman was speaking in his capacity as an individual and a scholar, and not as a representative of ABC or any of ABC’s affiliates.**
Loren Shokes, Journal of Sports & Entertainment Law (JSEL): The dramatic wage gap faced by women in entertainment has become an increasingly discussed topic. After discovering that she was paid significantly less than her male co-stars, actress Jennifer Lawrence stated that she was not angry with Sony but rather was “mad at myself…I failed as a negotiator because I gave up early.” As a male who has had a successful career producing and creating shows with strong female leads, why do you think that this is so and what changes do you think will have to be made to spur greater equality for women?
Josh Berman (JB): I think the entertainment industry just reflects a greater problem as a whole in our country, which is that it is not a surprise. Look now or in years before, although the wage gap is decreasing, it still exists. And it’s actually something that we take on in the second episode of Notorious that airs next week when you find out why Ryan admires Julia George so much and has to do with that exact issue that you’re talking about. We actually find out that Julia George has been a crusader for equal wages. So it’s a perfect question and next week I think the show itself gives the perfect answer. It airs September 29th on ABC.
JSEL: The digital age has spurred a “transformation of access” – no longer are people confined to traditional television to watch their favorite shows and programs. In this era of smart phones, tablets, and smart TV’s, an ever increasing number of Americans are cord cutters or cord nevers, people who have never subscribed to a traditional pay-TV service. When you were in the process of finding a “home” for your show, did you ever consider having it exclusively available on Internet platforms such as Netflix, Hulu, or Amazon Prime Instant Video?
JB: I think every show finds its right home and I think Notorious is a big budget, network, juicy, fun, salacious show, and I am thrilled that it gets its first home on network television. But for my other show, Drop Dead Diva, which was once a cable show and is now living on Netflix, a lot of people think that it is a Netflix original show. I think that you have to be prepared to be on any kind of platform. And I think Notorious is well suited for its life and its afterlife.
JSEL: Throughout her numerous shows, Shonda Rhimes has fearlessly portrayed serious and controversial subjects traditionally considered “off limits” or “taboo” for prime time including abortion, police shootings, and torture, to just name a few. Notorious focuses on the intersection of law and the media and how they interact with one another. In light of current events including the Black Lives Matter movement, the untraditional upcoming 2016 presidential campaign election, and the Orlando nightclub shooting, given that you have been provided with a platform in which tens of millions of Americans will watch and internalize what you present to them, do you feel that you have a responsibility to write about such issues and help spur a national dialogue?
JB: I don’t necessarily think that I’m responsible to do it, but I think that taking on issues that are in the zeitgeist makes for good entertainment. I like to think while I’m watching a show and if I’m challenged to think, the more exciting it is. On my last show, Drop Dead Diva, we were nominated for three GLAAD awards and won two. We had an episode about transgender bathrooms before it was even an issue in the media. So I absolutely think good TV drama that deals with law and media needs to be cutting edge and needs to address cutting edge issues.
JSEL: What inspired you and blogger Allie Hagan to create Notorious and how did you decided upon the title “Notorious?”
JB: Easy question. I met Wendy Walker, the real life producer of Larry King Live, and Mark Geragos, the defense attorney, and the show is based on their lives. I sat in a room with them and they began to tell me the stories behind the story. Of all of the stuff that I thought I knew about some of the biggest cases in the last decade, I realized I knew nothing. There was so much behind the scenes that I couldn’t as a writer even imagine it. I’ve spent six years writing on CSI, four years writing on Bones, so I knew a lot about crime writing but I realized that what I thought I knew was nothing compared to the real stories that are out there and that’s why I decided to write this show.
The title Notorious just seemed perfectly suited for the subject matter we’re covering – juicy, exciting, scandalous cases.
JSEL: Can you discuss the difference between your role as a co-creator and show runner on Notorious.
JB: I’m responsible for everything. I like to say if I’m on the set, it’s making sure the lines are read correctly, they’re picking up litter on the floor, and making sure each of the props are right. If I’m in editing, it’s to make sure that the cut is the way I want it to be, that the color correction is done properly, and that the graphics are correct. A show runner’s job is to make sure everyone else’s job functions smoothly.
JSEL: I watched the pilot for Notorious and thought that it was fantastic – a fast paced, on the edge of your seat, fun-filled experience. In a short forty-three minutes, the show touched on everything from murder, to prostitution, to drugs, to adulterous affairs, and more. When creating a show that plunges head first into issues such as these, do you, and if so to what extent, remain mindful of broadcasting standards and that this show is being broadcasted on a network owned by the Walt Disney Company?
JB: We don’t ever write with standards in mind. We write the best show. Yes, there are sometimes compromises to be made, but I never start from a place of compromise. I start from delivering the best show I know how to write and produce.
JSEL: You have an extensive background outside the realm of television and entertainment – to simply list your educational achievements, I read that you hold a degree in Public Policy from Princeton University, Law and Business graduate degrees from Stanford University, and that you were a Fulbright Scholar and earned a Masters in History from Sydney University. How do you feel that your studies impact the way you write, create, and produce television shows?
JB: I think being a lawyer and being trained as a lawyer has made me a much more solid screenwriter in the sense that I hope my logic is airtight. I almost think writing a legal brief is similar to writing a script in terms of not wanting people to be able to poke holes in your story that you’re telling. Certainly, being a lawyer has made me a better writer for sure. In terms of public policy, so much of public policy is debate and good story lines have two points of view or multiple points of view and I think my education absolutely informs who I am as a writer and I believe makes me a better writer. When I talk to kids today who say that they want to be a writer when they grow up, I always advise them to get as much education as possible. None of it will be a waste.
JSEL: I read that you began your career in television during the first season of CSI: Crime Scene Investigations, which premiered in 2000. Over the past 16 years, how have you seen the television industry evolve and are there any new legal issues that you find yourself considering today when working on Notorious that you did not contemplate during your time on CSI?
JB: I started on CSI as a junior writer and I think at that time in my career I was trying to figure out what people wanted to watch versus starting from the place of what makes the best story. So I think the issues or the topics I talk about in writing today is less dictated by what I think people like versus what I think will make better stories.
JSEL: Prior to working on Notorious, you served as an executive producer of CSI: Crime Scene Investigations, a consulting producer on the hit television criminal procedural drama Bones, and you created and were the show runner for the GLAAD winning series Drop Dead Diva. Can you discuss the similarities and differences between your roles on these series and how it compares to you work on Notorious.
JB: Sure. On CSI I started as junior writer and I left as an executive producer. So in a sense I like to say ‘I made my bones on CSI.’ On Bones I came in as a consulting producer. I was only supposed to be there for six weeks but I stayed for four years; it was a fantastic experience and I ran the writers room, meaning that my primary job was to come up with great stories. And then I created Drop Dead Diva and I co-created Notorious. On both of those shows, I actually serve as the show runner, meaning that the buck stops with me, for better or for worse.
JSEL: What are some of the legal issues that arise when writing, producing, advertising, and otherwise promoting television shows that will be nationally broadcasted.
JB: I don’t really approach story that way. We do have a Standards and Practices Department and occasionally they’ll say that this is too close to a real life person or a real life story, but I never think about it that way when I’m sitting down to write.
JSEL: Throughout your career in television, you have worked on a wide array of shows including CSI: Crime Scene Investigation, Drop Dead Diva, Notorious, Bones, Killer Instinct, and Vanished, each being extremely different from the others. With such a diverse portfolio, can you describe what draws you to work on a particular show?
JB: It’s always about the characters. At the end of the day, I need to feel drawn to the characters at the center of the show. I need to want to tell their stories. If the characters are compelling, I will enjoy writing their journey.
JSEL: The LGBT community is one of the most underrepresented groups in the film and television industry. During his acceptance speech for Outstanding Lead Actor in a Comedy Series for playing a transgender woman on the show Transparent, at the 2016 Primetime Emmys, actor Jeffrey Tambor called for producers, network owners, agents, and creative sparks to “please give transgender talent a chance.” As a producer, “creative spark,” and as an openly gay man yourself, do you feel that members of the LGBT community are unfairly discriminated against in the film and television industry and what do you think needs to be done to ensure that LGBT members have a greater representation both in front of the camera and behind the scenes?
JB: I’ve been a big advocate of LGBT characters on television. Obviously, Drop Dead Diva ran for six years and in three of those years we were nominated for GLAAD awards. We won twice, both times for transgender story lines. We hired a transgender actress for the episode that featured a transgender woman. So I feel like I’ve done a really good job and want to continue to do so. There will be gay characters and characters that represent all areas of society and all areas of sexuality on Notorious. I will continue to write to what I find is real.
JSEL: Can you tell me more about your career path and what drew you to work in television.
JB: I started as a lawyer. I thought I was going to be a lawyer but I found myself in law school always turning cases into stories. There was some very dry material and the way I would remember it would be creating characters in the law suits in the cases that were memorable to me and I thought it would be a lot more fun to tell stories about them than to argue about them.
JSEL: What advice would you give those who do not have a background in film or television but are interested in breaking into the industry, and specifically with respect to the legal side of film and television?
JB: If people are looking to break into the creative business like writing and producing, then they need to write and produce. People say that they want to be a writer all the time and you ask them what they’ve written and maybe they have one and a half scripts tucked into their drawer. You’re not a writer until you’ve written five, or ten, or twenty scripts. Every script you write will get better and better. You’ll learn the craft by doing. So don’t tell people that you want to be a writer until you already are a writer. People say they’re too busy – I wrote my first scripts while I was getting a JD/MBA at Stanford. If you’re passionate about it, just do it. It’s never a good thing to say you’re something when you’re not. Don’t represent yourself as a writer if you’re not willing to put in the time.