The provision simply states that although the grant of rights to Fox contained in Paragraph 6 of the Agreement does not include live-action television rights, "Marvel shall not, without Fox's prior written consent, which consent may be withheld in Fox's sole discretion, produce, distribute, or exploit or authorize the production, distribution, or exploitation of any live-action motion picture for free television exhibition, pay television exhibition, non-theatrical exhibition or home video exhibition (on cassettes or discs) . . ." (See Choe Decl., Exh. 2 at 9). It is unclear whether this provision was meant to prevent Marvel from producing a live-action television motion picture "based on," or "inspired by," the X-Men property, or whether it merely prevents Marvel from "using," i.e. appropriating, elements of the X-men property in creating a show that is substantially similar to X-Men. Thus, even though a provision precluding Marvel from producing motion pictures "based on" X-Men may be breached by the production of a show whose similarity to the X-Men property is less than "substantial," see Fink, 9 Cal.App.3d at 1008, 88 Cal.Rptr. 679, the Court is unable to discern whether such a provision is in fact part of the 1993 Agreement. Similarly,
