ContractsProf Blog

Editor: D. A. Jeremy Telman
Valparaiso Univ. Law School

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Friday, August 10, 2012

Nightmare scenario involving contract

I try to avoid reading the Yahoo stories with the headlines that try so hard to pique your interest, but this one was sent to me by someone who knew I'd be interested in the contracts-related issues.  Maryann Sahoury is suing a production company, Meredith Corp., after she particpated in an instructional breast feeding video that was used by a third party to create pornography.  Sahoury participated in the video to help other moms who might have trouble breastfeeding their children.  She was told by the producer that only her first name would be used in the video.  After the filming and while juggling her baby, she was asked to sign a "piece of paper" which she did without reading it.

When she later conducted a search of her name, she found numerous links to pornographic sites and found one that showed her breastfeeding video spliced with another pornographic one containing a woman with similar features.  Even a search of her baby's name turned up links to pornographic sites and videos.  Her lawsuit is not claiming that the production company is responsible for creating the pornographic spliced video; rather her lawsuit states that the production company posted the breastfeeding video on YouTube and used her full name, when it represented it would only post it on Parents TV and cable television and use her first name. 

The production company, Meredith, said that Sahoury had signed a release that allowed the company to use her "image, voice and name."

I find the company's response infuriating.  Any dummy knows that posting a video anywhere on the internet can be misused - especially when the video contains a woman's breast.  It doesn't sound like Sahoury is trying to make money from this - the article states that she is seeking only an order prohibiting the defendants from using the video featuring her and her daughter for any purpose (and attorney fees). 

This situation raises a host of legal and policy related issues, but I'm going to try to focus on the contract ones.  The first issue that comes to mind is whether the release is even enforceable.  Was there consideration for the release given that it was signed after filming ended.  (She wasn't paid for her participation in the filming).  I also wonder whether there might be an interpretation issue that could work in her favor - "image, voice and name," - does that mean first name or first and last name?  If nothing more is stated in the release, the verbal assurance that only her first name would be used should be highly relevant to interpret the meaning of the word "name".  Furthermore, did the release state in what medium or outlet the video could be used?  If it wasn't worded sufficiently broadly, the verbal assurance that it would only be posted on Youtube should limit the scope of the license she granted.  In addition, was there an integration clause in the event to allow oral statements (and get around the parol evidence rule).  Along the same lines, was the assurance that it would be posted only on Parents TV and cable television given before or after she signed the release? 

I know I'm missing other issues so please feel free to add your thoughts in the comments. 

[Nancy Kim]

[corrected post]

August 10, 2012 in Miscellaneous, True Contracts | Permalink | Comments (4) | TrackBack (0)

Thursday, August 9, 2012

Contract Dispute at Thomas M. Cooley Law School

6th CirOn August 6, 2012, the Sixth Circuit decided Branham v. Thomas M. Cooley Law School, a case involving the termination of a tenured law professor, Lynn Branham.  Professor Branham, currently visiting at the St. Louis University School of Law, is an expert in criminal law and had been teaching at Cooley Law School since 1983.  For some reason, the Cooley Law School asked her to teach constitutional law and torts in Spring 2006.  She complained but complied and then went on leave for a semester.  When she returned, she was again asked to teach constitutional law.  When she refused, she was terminated.

A District Court found that Professor Branham had not been properly terminated, because the dismissal process had not been in accord with those provided for in her employment contract.  Cooley then followed the proper procedures -- Cooley's faculty voted to dismiss Branham and the Cooley's Board of Directors upheld that decision.  The District Court was thereby satisfied, and it entered judgment for Cooley.

The Sixth Circuit affirmed the District Court's ruling on the breach of contract issue.  Professor Barnham had entered into a one-year contract with Cooley, and the fact that she had tenure did not create rights beyond those provided in the employment agreement.  She was entitled to a faculty vote and then the vote of the Board of Directors.  Both of those occurred, and the Sixth Circuit was not overly concerned with the fact that they occurred tardily. 

Under Michigan law, an employer's process must comply with five elements of "elementary fairness": notice, opportunity to be heard,  formulation of issues and fact, a rule of finality and other procedural elements appropriate to the nature of the proceeding.  The Sixth Circuit was satisfied that the elements of elementary fairness were met in this case. 

One might think that Professor Barnham should be entitled, at the very least, to damages for breach of contract for the period during which she had been dismissed without appropriate procedures, but the Sixth Circuit found that because Cooley eventually followed the appropriate procedures, Professor Barnham had no claim for damages.  She was only entitled to equitable relief, which she apparently recieved when Cooley complied with the District Court's order to give her appropriate process.

The Sixth Circuit opinion focuses on the contractual issues and on the question of whether Cooley followed the appropriate procedures for the termination of a faculty member.  The Court defers to the faculty members who determined that Cooley had "good cause " for termination of Professor Barnham.  We can only hope that, at some point, some body with authority to make such a determination de novo will recognize that a tenured faculty member's refusal to teach courses removed from her area of expertise does not constitute "good cause" for her termination.

[JT]

 

August 9, 2012 in Law Schools, Recent Cases | Permalink | TrackBack (0)

Wednesday, August 8, 2012

New in Print

Tuesday, August 7, 2012

Weekly Top Tens from the Social Science Research Network

SSRNRECENT HITS (for all papers announced in the last 60 days) 
TOP 10 Papers for Journal of Contracts & Commercial Law eJournal 

June 8, 2012 to August 7, 2012

RankDownloadsPaper Title
1 267 The Antitrust/Consumer Protection Paradox: Two Policies at War with Each Other 
Joshua D. Wright
George Mason University - School of Law, Faculty
2 218 Party Choice and the Common European Sales Law, or: How to Prevent the CESL from Becoming a Lemon on the Law Market 
Jan M. Smits
Maastricht University Faculty of Law - Maastricht European Private Law Institute (M-EPLI)
3 196 Regulatory Techniques in Consumer Protection: A Critique of European Consumer Contract Law 
Oren Bar-GillOmri Ben-Shahar
New York University (NYU) - School of Law, University of Chicago Law School
4 192 The Optional Instrument of European Contract Law: Opting-in through Standard Terms – A Reply to Simon Whittaker 
Jürgen Basedow
Max Planck Institute for Comparative and International Private Law
5 159 You Definitely Should Have: A Contractual Look at Israeli Wedding Gift Culture 
Zvi H. Triger
College of Management Academic Studies (COMAS) School of Law, 
Date posted to database: July 9, 2012 
Last Revised: July 9, 2012
6 138 What Can Be Wrong with an Option? An Optional Common European Sales Law as a Regulatory Tool 
Horst Eidenmueller
University of Munich
7 122 Featuring People in Ads 
Eric GoldmanRebecca Tushnet
Santa Clara University - School of Law, Georgetown University - Law Center
8 113 The Dynamics of Contract Evolution 
Stephen J. ChoiG. Mitu GulatiEric A. Posner
New York University (NYU) - School of Law, Duke University - School of Law, University of Chicago - Law School
9 100 Affirmatively Inefficient Jurisprudence?: Confusing Contractors’ Rights to Raise Affirmative Defenses with Sovereign Immunity 
Steven L. SchoonerPamela Kovacs
George Washington University - Law School, George Washington University - Law School,
10 95 Law and the Stable Self 
Rebecca E. Hollander-Blumoff
Washington University in Saint Louis - School of Law

RECENT HITS (for all papers announced in the last 60 days) 
TOP 10 Papers for Journal of LSN: Contracts (Topic)  

June 8, 2012 to August 7, 2012

RankDownloadsPaper Title
1 192 The Optional Instrument of European Contract Law: Opting-in through Standard Terms – A Reply to Simon Whittaker 
Jürgen Basedow
Max Planck Institute for Comparative and International Private Law
2 159 You Definitely Should Have: A Contractual Look at Israeli Wedding Gift Culture 
Zvi H. Triger
College of Management Academic Studies (COMAS) School of Law
3 138 What Can Be Wrong with an Option? An Optional Common European Sales Law as a Regulatory Tool 
Horst Eidenmueller
University of Munich
4 95 Law and the Stable Self 
Rebecca E. Hollander-Blumoff
Washington University in Saint Louis - School of Law
5 68 Autonomy, Pluralism, and Contract Theory 
Hanoch Dagan
Tel Aviv University - Buchmann Faculty of Law
6 61 Reflections on the Two-Handed Lawyer: Thinking versus Action in Business Lawyering 
Jeffrey M. Lipshaw
Suffolk University - Law School
7 59 Mistake Under the Common European Sales Law 
Ariel Porat
Tel Aviv University
8 45 The Renegotiating Clause in Petroleum International Joint Venture Agreements 
Talal Abdulla Al-Emadi
University of Qatar
9 45 The Importance of Fault in Contract Law 
Robert A. Hillman
Cornell Law School
10 45 The Contract that Neither Party Intends 
David McLauchlan
Victoria University of Wellington - Faculty of Law

 

[JT]

August 7, 2012 in Recent Scholarship | Permalink | TrackBack (0)

Monday, August 6, 2012

Covenants Not to Compete, for a (Hefty) Price

Sometimes, as this article froom Bloomberg Businessweek points out, it pays not to work.  John Krenicki, a former executive of GE, will be paid $89,000 a month until 2022 to keep him from working for a competitor for three years.  That doesn't mean,(as my misleading first sentence indicates), that he can't work for anyone,  In fact, according to a WSJ article (that I won't link to because you hit a subscriber paywall), Mr. Krenicki is going to take a job as a partner at a private equity firm.  As the Bloomberg article notes, the three year non-compete is three times as long as the average because Krenicki is, apparently, worth it.

[Nancy Kim]

August 6, 2012 in In the News, Labor Contracts | Permalink | Comments (0) | TrackBack (0)