April 20, 2010
ContractsProf Blog Breaks Bad
Yep. We're imperialistic, so what are you gonna do about? Throw some fulminated mercury at us?!?
We've already pretty much taken over the realms of business associations, alternative dispute resolution, national security law, international law, and law and literature. Well, now we're taking over intellectual property. And why? Because other blawgers are dropping the ball, in this case by not reporting on the relevant intellectual property issues in AMC's Breaking Bad. If you don't have cable or have cable but think (incorrectly in this case) that you have better ways to use your time than watching television on a Sunday night, you can get a re-cap of most of the relevant issues from the first two seasons of the show here.
In Season 3, our hero, Walter White, is taking a sabbatical from his Heisenberg identity and has given up his career as a producer (cook) of crystal meth. His partner in the business, Jesse Pinkman, decides to continue the business on his own, cooking up a batch of crystal meth by using Walt's formula. He sells this product through Walt's distributor, Gus. Gus pays Jesse half of his producer's fee and gives the other half to Walt. Jesse is quite understandably furious and Walt is equally furious but less understandably so. As he explained to Gus on Sunday night, for Walt, it's really all about the chemistry, and he cannot stand to have his formula reproduced by someone like Jesse, who whatever other endearing qualities he may have, is not a master chef.
I don't want to give away too much more of the plot, in case some of our readers are waiting to watch the entire season through Netflix, which BTW is a method I highly recommend, since watching television series about addictive drugs is, ironically enough, highly addictive. It's hard to wait a week between episodes and to endure commercials.
In any case, the plot gives rise to certain intellectual property concerns in the context of a now-defunct -- or at least non-functioning partnership. In this case, the partnership never operated according to a written partnership agreement. Still, Walt and Jesse were operating according to a contract of sorts, and we might look to their conduct to establish who has the right to the intellectual property developed in their joint venture. Walt clearly has the stronger claim, since he was the inventor of the recipe, while Jesse was just in charge of distribution. However, Walt had made clear that he was not interested in continuing the business and the business, which was illegal and thus never properly formed, was also never officially dissolved or terminated.
Walt seems to think he has a right to exclusive use of the recipe, even if he elects not to use it. Jesse seems to think he has a non-exclusive right. Since their claims are unlikely to be adjudicated in any court, we had better hash things out here.
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