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Friday, August 22, 2014

LA Dentist Gets $5000 for $1605 Default Judgment against Kim Kardashian

This story from the WSJ Law Blog falls right into the ContractsProf Blog sweet spot: 

In October 2002, Los Angeles dentist Dr. Craig D. Gordon won a $1,605.73 default judgment against a 22-year-old former patient who was allegedly fitted with porcelain fillings to replace silver ones but never paid the bill.

The patient was Kim Kardashian, and nearly a dozen years later, Dr. Gordon has finally gotten his money back – with interest and an extra $1,500 thrown in. The twist is the money didn’t come from the now (in)famous Ms. Kardashian but from a California attorney who bought the uncollected judgment for $5,000 in an online auction that ended Thursday.

JudgmentMarketplace.com, a three-year-old site that gives creditors a forum for hawking uncollected debts, said the transaction marked the first time in the company’s history that the selling price for a listed judgment exceeded the total value of the principal and interest.

“Judgments usually sell for only pennies on the dollar,” said the site’s founder, Shawn Porat, a Manhattan resident.

He said the Kardashian judgment may have commanded a premium because of its novelty value. In other words, for $5,000, you can tell people at a cocktail party that a Kardashian is indebted to you.

Ms. Kardashian’s attorney, Todd Wilson, told Law Blog that she “never sought or received treatment by Dr. Gordon of any kind.”

The buyer, said Mr. Porat, could also expect the judgment to increase in value as more interest accrues. Under California civil procedure code, judgments automatically expire after 10 years, but before time runs out, a creditor may file a request for a 10-year renewal with the original court. And there’s no limit to how many times you can extend it.

“Although I wish she had just paid her bill like most of my clients do, I’m really glad to finally have closure on this incident,” Dr. Gordon said in a statement.

Interested in purchasing some celebrity debt of your own?  WSJ Law Blog reports:

JudgmentMarketplace.com is also listing a $9 million wrongful death judgment against O.J. Simpson on behalf of Ronald Goldman’s mother, who is asking for at least $1 million. The 17-year-old judgment has accumulated more than $15 million in interest, according to the site.

August 22, 2014 in Celebrity Contracts, In the News | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 13, 2014

Tour Riders [File this in: Rock 'n' Roll]

DownloadI love concert tour riders -- those sometimes lengthy contract terms that reveal all of a band's idiosyncratic  backstage requests.  The most famous rider term is, of course, Van Halen's requirement of no brown M&Ms.  And we've  blogged about the explanation for this peculiar request more than once: here and here

WNYC's John Schaefer hosted an extended discussion of tour riders on Soundcheck.  My favorite is Iggy Pop's request: "One monitor man who speaks English and is not afraid of death."  

The Brooklyn band Parquet Courts asked for:

  • 1 bottle of communion grade red wine
  • 1 bottle of white wine that would impress your average non-wine-drinking American
  • 1 bottle of lower-middle shelf whiskey – cheap but still implies rugged masculinity
  • Mixers for aforementioned mid-level whiskey, of slightly higher quality than the whiskey
  • A quantity of “herbal mood enhancer”
  • 1 copy of newspaper with the most interesting headline/front page picture (comic section must feature Curtis)

You can listen to the show here:

August 13, 2014 in Celebrity Contracts, In the News, Music | Permalink | Comments (0) | TrackBack (0)

Monday, March 10, 2014

NewYork City Ballet Dancers Agree to New Contract

As the New York Times reports here, dancers with the New York City Ballet (NYCB)  have been operating without a contract since the summer of 2012.  No details of the agreement are available, beyond the fact that the dancers are guaranteed pay for 38 weeks of work now, up from 37.  

A bit of quick internet research suggests that a member of the NYCB corps de ballet makes $1500 a week.  Let's assume the new contract is more generous and round up to $2000/week.  If they get paid for 38 weeks of work, that comes out to $76,000/year, which is a good salary in New York City, so long as you can share a studio apartment in an outer borrough with two or more other members of of the corps (or you can marry and investment banker).  There was a bit of controversy about five years ago when tax returns for Peter Martins, the NYCB's Ballet Master-in-Chief, surfaced and revealed that he made about $700,000.  Some of that money comes from royalties he earns on his choreographies.  In any case, it seems that was considered a lot of money for a dancer.

To put that in some perspective, the median salary for an NBA player is $1.75 milion, if we include players on short-term contracts.  The top salary exceeds $30 million, and the lowest salary, as of the 2011-12 season according to nba.com, was just under $500,000 for a rookie.

And now, here is the New York City Ballet performing an excerpt from George Balanchine's Agon

 

 

March 10, 2014 in Celebrity Contracts, Commentary, Labor Contracts | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 29, 2014

Motley Crue "Death Pact"

Motley Crue, the rock band with the best VHI Behind the Music episode, has agreed to disband after one final tour.  According to CNN

All four members of Motley Crue signed an agreement Tuesday that will permanently dissolve the legendary rock group after a final tour.

Vince Neil, Mick Mars, Nikki Sixx and Tommy Lee appeared in a Hollywood hotel Tuesday for a signing ceremony for a "cessation of touring agreement," which their lawyer said would bring a peaceful end to the group.

"Other bands have split up over rancor or the inability of people to get along, but this is mutual among all four original members and a peaceful decision to move on to other endeavors and to confirm it with a binding agreement," attorney Doug Mark said.

Motley Crue has sold more than 80 million albums since hitting the road in 1981, but drummer Tommy Lee said, "Everything must come to an end."

"We always had a vision of going out with a big f**king bang and not playing county fairs and clubs with one or two original band members," said Lee, who is the youngest member at 51. "Our job here is done."

Guitarist Mick Mars, the oldest band member at 62, said the group's 33 years have had "more drama than 'General Hospital.'"

Vocalist Vince Neil, 52, said he'll miss the group, but it's not an end to his rock career. "I feel there are a lot of great opportunities and exciting projects after Motley."

The first leg of "The Final Tour" starts in Grand Rapids, Michigan, on July 2.

The termination agreement becomes effective at the end of 2015, after a global tour that will include Alice Cooper.

"Motley Crue and Alice Cooper -- A match made in Armageddon?" said Cooper.

I'd love to see a copy of the contract (...wherefore Motley Crue hereby f***g agrees fortwith to cease any and all  rock band activities of any kind...).   In the main, it sounds like a hard one to breach: I promise not to show up for band stuff anymore! 

January 29, 2014 in Celebrity Contracts, In the News, Teaching | Permalink | TrackBack (0)

Friday, December 20, 2013

$3.6 Million Seized from Starlin Castro's Bank Accounts for Breach of Contract

CastroChicago Cubs shortstop Starlin Castro (pictured) has reportedly had $3.6 million seized from his bank accounts in connection with an alleged breach of contract as reported here in the Chicago Tribune.  The seizure relates (although how is unclear) to an alleged contract that Castro's father entered into when Castro was 15 years old with a baseball training school in the Dominican Republic.  The alleged contract provided that the school was entitled to three percent of Castro's earnings as a professional ball player. 

According to the Tribune, the money has already been seized from several banks, but the Tribune also reports that Castro's former coach at the school is "planning" to sue Castro.  It is not clear why the school is able to seize funds based on a planned suit, but perhaps the coach is contemplating a separate law suit from that already initiated by the school.  Still, since the Tribune suggests that Castro will counterclaim and claims that the suit is baseless, it is hard to understand how the seizure could have taken place prior to adjudication on the merits.   Castro stole only nine bases last year (and was caught stealing six times).  He is not a flight risk.  

It is also not clear where the $3.6 million figure comes from.  The Tribune reports that Castro signed a $60 million deal with the Cubs in 2012.  So, he is due a bit under $7 million/year, which he has been paid for one year.  Even if the school is due to be paid for the full $60 million, three percent of $60 million is $1.8 million, but why would the school be entitled to be paid before Castro has been paid?

And just for those of you who have any interest in my occasional gripes about absurd sports salaries.  Castro was ranked 22nd among shortstops last year.  I'm not certain but I suspect that those rankings are based exclusively on offensive numbers, which is ridiculous when it comes to shortstops, who are key defensive players.  Castro's fielding percentage was 26th last year out of 28 shortstops who played more than 100 games.  While Castro's offensive numbers were way off last year, his defensive numbers were a bit better than prior years.  No shortstops near Castro in the rankings made even half of what he made.  But he is guaranteed nearly $7 million a year even if his defense never picks up, he hits a punchless .250 and is as big a threat to get picked off as he is to steal a base.  Baseball salaries are no more rational than CEO salaries and both are in need of reform.

[JT]

December 20, 2013 in Celebrity Contracts, In the News | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 6, 2013

Eric Goldman on Getting from "Dope" to "Nope"

GoldmanOn Monday, the Distrct Court for the  Southern of New York issued its opinion in  Beastie Boys v. Monster Energy Company, 12 Civ. 6065 (PAE) (S.D.N.Y. November 4, 2013).  The issue in the case was whether DJ Z-Trip had authorized Monster Energy to use a remix and video Z-Trip (Mr. Z-Trip?) had made of Beastie Boys songs.   Z-Trip wrote to Monster Energy saying, "Dope!" in the context of series of exchanges with Monster Energy over use of of the remix, and Monster Energy construed that word as consent.

Santa Clara Law Professor Eric Goldman (pictured) has a thorough anlysis here.

[JT]

November 6, 2013 in Celebrity Contracts, Contract Profs, In the News, Music, Recent Cases, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 5, 2013

Grateful Dead Bassist Grateful for Steady Work at Age 73

Phil LeshContracts law is about facilitating mutually beneficial transactions.  Where would we be in a world without contracts lawyers?

A case in point is this story in the New York Times: Long-time Grateful Dead bassist, Phil Lesh (pictured), has entered into a contract with Peter Shapiro, a promotor, venue owner and life-long Deadhead to make it possible for Lesh to do 45 concerts a year without having to drive around the country in a tour bus.

More than half of the concerts will be at two venues owned by Mr. Shapiro, the Capitol Theater in Port Chester, New York (just north of Manhattan), and the Brooklyn Bowl, a combination rock club/bowling alley in Williamsburg.  The Capitol is a renovated, 2000-seat 1920s movie palace and is said to be an ideal space for Mr. Lesh's music.

The deal is sweet on both sides, from the way it is described in the Times.  Mr. Shapiro gets all sort of merchandizing rights and the rights to recordings of the concerts -- more non-bootleg bootlegs in the Grateful Dead tradition -- while Lesh gets to perform as much as he wants, where he wants, with reduced travel and hassle.  This is clearly beneficial to both parties and to third-party beneficiaries (aka Deadheads) who will get to see a lot of Phil Lesh in the New York area and can take advantage of special promos like "Bowling with Phil."

What a long strange trip it's been!

[JT]

November 5, 2013 in Celebrity Contracts, In the News | Permalink | Comments (0) | TrackBack (0)

Monday, October 28, 2013

Quincy Jones Sues Michael Jackson Estate and Sony for Breach of Contract

Quincy JonesAs reported here by Reuters, 27-time Grammy-winning producer Quincy Jones (pictured) is suing the estate of Micahel Jackson and Sony Music Entertainment (Sony) for $20 million for breach of two contracts relating to music that Mr. Jones produced on some of Michael Jackson's most successful albums.  Mr. Jones alleges that the music was re-mixed for used in a Michael Jackson concert movie, "This Is It," and in to Cirque du Soleil shows that use Mr. Jackson's music.  Mr. Jones claims that he is being denied proceeds in violation of his agreements with Sony and Mr. Jackson based on secret agreements between Sony and the administrators of Mr. Jackson's estate.

[JT]

October 28, 2013 in Celebrity Contracts, In the News, Recent Cases | Permalink | TrackBack (0)

Wednesday, October 23, 2013

Disco Star Sues Contractor for Allegedly Faulty Work

"I Will Survive" singer Gloria Gaynor has filed breach of contract and warranty claims against a contractor.  According to MyCentralJersey.com:

Gaynor has filed suit in state Superior Court in Somerville against a Piscataway contractor who replaced a second-floor concrete deck at her home that she says later caused leaks into the house and has to be replaced at a cost of $120,000.

According to the lawsuit filed earlier this month, Gaynor contracted with Diaz Landscape Design and Tree Service of Piscataway in November 2007 to remove an existing second-floor concrete deck and replace it with a new deck at a cost of $38,060.

After the new deck was installed, the lawsuit alleges, water began to leak into Gaynor’s home because of “faulty construction.”

There was also water ponding on the deck, water damage to wood sills and supports and the formation of mold, according to the suit.

Gaynor told the contractor about the problems and asked that the conditions be corrected. The contractor attempted to fix the problems, but the attempts failed and the problems persisted, causing more damage to the property, according to the lawsuit.

Gaynor then had another contractor examine the work performed by Diaz.

The new contractor determined that the work done by Diaz was “so faulty and defective” that the only appropriate remedy is removing the deck and constructing a new one at a cost of $120,000, the suit says.

Besides breach of contract and breach of warranty, Gaynor’s suit also charges Diaz with consumer fraud by not being registered in New Jersey as a home improvement contract and failing to obtain the required building permits, resulting in the work not being inspected.

Is Gaynor entitled to the cost of replacement of the deck?  Time for a music break:

 

[Meredith R. Miller]

October 23, 2013 in Celebrity Contracts, In the News, Music, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Thursday, September 26, 2013

There Is Hope: Battle Creek

 

Vince_Gilligan_by_Gage_Skidmore_2
Vince Gilligan by Gage Skidmore
It's not as if I thought the world was going to end on Sunday, when AMC shows the absolutely, positively last episode of Breaking Bad, I just thought I would never again have anything to which I could look foward.  I did just turn 50, so there is AARP membership and a colonoscopy, but I thought there would be nothing in my future that I would anticipate enjoying.  

 

But then came this in today's New York Times.  Vince Gilligan, the creator of Breaking Bad just sigend an agreement for a new show on CBS.  The timing of the announcement speaks well of both Mr. Gilligan and CBS, capitalizing on the current fan feeding frenzy surrounding the end of the series.  But the fact that CBS is belatedly pouncing on a Gilligan script originally offered to CBS ten years ago speaks less well of that party to the deal.  

Mr. Gilligan has an exclusive deal with Sony Pictures Television, which negotiated for him an unsual deal in which CBS agreed up front to air 13 episodes of Mr. Gilligan's series, Battle Creek.  There's a lot of money involved, but who cares?  If Battle Creek is anything like Breaking Bad, I will forgive CBS for not airing a single show that I have wanted to watch in the last 25 years.

Or am I forgetting something?  Has CBS had any good comedies or dramas in prime time?

[JT]

September 26, 2013 in Celebrity Contracts, Commentary, In the News, Teaching, True Contracts | Permalink | Comments (0) | TrackBack (0)

Thursday, September 12, 2013

Words of Wisdom from a "Macho Man"

Village People

The NYT reported that Victor Willis, who you may know as the policeman/naval officer from the Village People, will finally get control of copyright to certain songs that he wrote back in the day.  Those songs include hits like "YMCA," "In the Navy" and "Go West."  Yes, he also wrote "Macho Man," but unfortunately, he wrote tht one before the relevant law went into effect.  That law was a provision in the 1978 Copyright Act that gave creators "termination rights" that permitted them to take back control of the copyright to their works after 35 years - even if they had originally signed away those rights.  We've all heard the horror stories of our favorite musicians in their lean and/or naive years signing away rights in one-sided contracts that favor the labels.  His is the first well-known case of an artist invoking those termination rights, which opens up a lot of possibilities for him.  Mr. Willis is quoted in the NYT article as saying, "I've had lots of offers, from records and publishing companies" although he isn't sure what he'll do next.  He does have these parting words of wisdom, "When you're young, you just want to get out there and aren't really paying attention to what's on paper.  I never even read one contract they put in front of me, and that's a big mistake."  It takes a real "macho man" to admit his mistakes. 

 

[Nancy Kim]

September 12, 2013 in Celebrity Contracts, In the News | Permalink | Comments (0) | TrackBack (0)

Monday, September 2, 2013

Dave Chappelle and Breach of Contract

ChappelleComedian Dave Chappelle (pictured) is edgy, and people like that about his comedy.  His edge is what makes his comedy sophisticated, challenging and -- when it really works -- thrilling.  But edgy comedy can easily go awry.  Audiences might miss the fact that Mr. Chappelle often plays upon racial stereotypes rather than simply indulging or reenacting them. Edgy comedy makes demands of its audience, and sometimes the audience is not up to the challenge.  That is what appears to have happened last week in Hartford, Connecticut.  The other theory is that Mr. Chappelle had "a meltdown" in the face of a loud audience that wanted Mr. Chappelle's routine to be more interactive than he intended.  Aisha Harris has a balanced report on Slate, including some YouTube videos that might help people judge for themselves which version is accurate.  

Apparently, Mr. Chappelle was so disturbed, distracted, annoyed, and frustrated by an audience that would not stop shouting at him -- even though the shouts started as encouragement -- that he decided not to perform.  However, people speculate that he felt contractually obligated to remain on the stage for a full 25 minutes, and so he read aloud from a book, smoked a cigarette and variously occupied himself in ways that people have concluded were not his act until the time expired.  

The event raises interesting contractual questions whether one believes that Mr. Chappelle himself or Mr. Chappelles audience was to blame for what transpired.  Some of those questions run as follows:

  • Regardless of Mr. Chappelle's reasons, did he in fact abide by his contract simply by remaining on stage for 25 minutes?
  • Is there any argument that could be made that what happend in Hartford was a performance?  Could anyone have claimed breach of contract upon witnessing the premiere of John Cage's 4'33?
  • If heckling actually motivated a comedian (any comedian) to leave the stage early, would that be a breach of contract?
  • But if the shouting at Mr. Chappelle's show was actually intended to be encouraging or simply cries of affection for the comedian, does that change the analysis in the previous question? [The Beatles stopped touring because all that could be heard at their concerts were the screams of their teenaged fans, so if they stopped touring in the middle of a concert, would they be justified?]
  • Is there a remedy for individual ticket-holders in such a case, and against whom is their remedy?  They were not in privity with Mr. Chappelle, so they might sue the concert organizers who in turn could attempt to recover from Mr. Chappelle.
  • But if in fact the dynamic at the show in Hartford replayed the dynamic that motivated Mr. Chappelle to end his television show, is that a legitimate defense?  Can an African American comedian defend himself against a breach of contract suit on the ground that too many audience members were laughing at his jokes for the wrong reasons?

[JT]

 

September 2, 2013 in Celebrity Contracts, Commentary, True Contracts | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 27, 2013

New York Times Reports on the Contract that Brought Dvorak to New York

Dvorak1What at thrill to see a contracts story on the front page of the Saturday New York Times Arts Section above the fold!  The occasion is a public exhibition by the Dvorak American Heritage Association, which will display the actual contract that brought Antonin Dvorak (pictured contemplating a move to America) to New York for three years beginning in 1892.

According to the Times, Jeanette Thurber, wealthy patron of the National Conservatory of Music of America, agreed to pay Dvorak $15,000 -- 25 times what he was getting in Prage -- in return for his agreement to keep regular hours (well, three hours a day), teaching six days a week at her school.  She did give him summers off.  He was also contractually obligated to give up to six concertns a year.  It's not clear whether that means that he was himself to perform or if he was to conduct an orchestra or chamber music group composed of the Conservatory's students.

The Times reports that the panic of 1893 made it difficult for Mrs. Thurber to keep up with the payments she owed Dvorak.  He may have gone back to Prague a few thousand dollars short.  

[JT]

August 27, 2013 in Celebrity Contracts, In the News, Music | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 31, 2013

One-Day Contracts

Today's New York Times features an article on a relatively recent sports phenomenon -- the one-day contract.  In a nutshell, the one-days permit a retired player to re-sign with the team he played for in his prime, so that he can retire as a member of that team.  The player then shows up at the stadium and the fans can cheer him one last time (until the next opportunity comes around).    The team may benefit from the one-day contract in that fans may show up to cheer a retired star and re-experience a team's glory days.  The Times charaterizes these contracts as effecting for the players "a meaningless return to a team so they can reflect on how meaningful that team was to them." 

Jerry_RiceThis characterization strikes me as unfortunate.  The return is far from meaningless.  In fact, the contract is all about meaning and not at all about playing a particular sport or even about money for the athlete.  San Francisco 49er star Jerry Rice (pictured) was given a one-day contract that actually specified an amount, consisting of his rookie year (1985), his number (80), his retirement year ('06) and then 49, totaling $1,985,806.49.  But according to the Times (and Wikipedia), the amount was ceremonial.  Rice was not actually paid anything when he re-signed with the 49ers.  In baseball, the actual contracts are with farm teams, as teams cannot afford to give up a roster spot during the season -- even for one day.  This too is evidence that the contracts are not meaningless.

One blogger thinks the one-day contract phenomenon has gone too far, arguing both that it is meaningless and trivial and that it is an attempt at revisionist history.  These players did not actually end their careers with the teams that meant the most to those careers, and so the one-day contracts perpetrate a fraud.

Another way to look at it is that sports is imitating art, at least if the television series Lost is art.  Like the characters on Lost, these players get to return to a virtual reality in which they share experiences with the people who meant the most to them at the time in their lives when they had their biggest impact.

[JT]

July 31, 2013 in Celebrity Contracts, In the News, Sports | Permalink | Comments (0) | TrackBack (0)

Thursday, July 4, 2013

What Could Be More All-American than a Baseball Contract?

NY  MetsThere have been a few articles over the past few days about Bobby Bonilla's contract with the New York Mets.  Bonilla played for the Mets until he retired in 2001.  At that point, he still had $5.9 million outstanding on his contract.  Rather than giving Bonilla a lump sum payment, the Mets opted to pay him start paying him in 2011.  The Mets are to pay Bonilla a total of $29.8 million over 25 years.  

Cork Gaines of the Business Insider explains that this was a good deal for the Mets in terms of their bottom line on the Bonilla contract.  Assuming an 8% rate of return, the long-term payout deal is worth $10 million less over time to Bonilla than would a one-time payout.  And, because the Mets had the use for teny years of the $5.9 million that they owed Bonilla until the payouts began in 2011, they were able to invest that money, and the come out at the other end looking pretty good, assuming an 8% annual return on investment and ignoring all other issues, like the tax consequences of the transaction.  

In the New York Times, Jeff Z. Klein and Mary Pilon are decidedly less positive about the Bonilla contract, but they dutifully report that all parties involved stil believe they acted in their own best interest.  The Times provides some details missing from the Buinsss Insider report.  The Mets needed to get Bonilla off their books and out of their clubhouse so that they could free up space under the MLB salary cap and free themselves from an underperforming player who had become a distraction.  

We have expressed our view before that multi-million dollar, multi-year deals for veteran ballplayers are irrational.   With baseball mania for statistics, it ought to be possible to fine-tune baseball contracts with incentives so that players actually get paid for performance (you know, like CEOs) rather than getting paid for hitting .250 when they are 35 because they hit .320 when they were 29.

[JT]

July 4, 2013 in Celebrity Contracts, Commentary, In the News | Permalink | Comments (1) | TrackBack (0)

Wednesday, May 22, 2013

Breaking: Bieber Requires NDA of Guests in His Home

We interrrupt the highbrow discussion of boilerplate and SCOTUS cases to bring you this breaking news from news.com.au that falls right within the utterly sweet spot of contracts and pop culture:

YOU party at Justin Bieber's house? You tell no one - or it'll cost you $5 million.

After a string of bad press in recent months, the 19-year-old has taken the extreme measure of asking guests to sign a confidentiality agreement before they enter his property.

TMZ claims to have obtained a document that everyone must sign before entering his property for one of the infamous get-togethers.

Entitled a Liability Waiver and Release, the website says the paper states that guests must not make comments or post anything on social media about what happened inside the house.

This reportedly includes the "physical health, or the philosophical, spiritual or other views or characteristics" of Justin and other partygoers.

Anyone in breach of the waiver can be sued for an enormous amount of money.

You blog? $5 million. You tweet? $5 million. You Instagram? $5 million.

While no one knows exactly what goes on inside these parties, the document also warns the get-togethers may include activities that are "potentially hazardous and you should not participate unless you are medically able and properly trained".

The risks involved apparently include "minor injuries to catastrophic injuries, including death".

Justin may be eager to change public perception after hitting headlines for a number of controversial reasons lately.

As well as turning up late for a UK gig and being accused of assaulting a neighbour, the star has now come under fire for "abandoning" his pet monkey.

Here's a copy of the document that TMZ claims is the NDA.  

Where exactly was this news story when I needed an exam question?  And is this liquidated damages clause a penalty?

[Meredith R. Miller]

 

 

May 22, 2013 in Celebrity Contracts, In the News | Permalink | TrackBack (0)

Thursday, May 9, 2013

Plain Meaning Leads to Mood Indigo for Ellington Heir

220px-Duke_Ellington_-_publicityDuke Ellington’s grandson brought a breach of contract action against a group of music publishers; he sought to recover royalties allegedly due under a 1961 contract. Under that contract, Ellington and his heirs are described as the “First Party” and several music publishers, including EMI Mills, are referred to as the “Second Party.” On appeal from the dismissal of the case, Ellington’s grandson pointed to paragraph 3(a) of the contract which required the Second Party to pay Ellington "a sum equal to fifty (50 percent) percent of the net revenue actually received by the Second Party from…foreign publication" of Ellington's compositions. Ellington’s grandson argued that the music publishers had since acquired ownership of the foreign subpublishers, thereby skimming net revenue actually received in the form of fees and, in turn, payment due to Ellington’s heirs.

The appellate court explained the contract and the grandson’s argument:

This is known in the music publishing industry as a "net receipts" arrangement by which a composer, such as Ellington, would collect royalties based on income received by a publisher after the deduction of fees charged by foreign subpublishers. As stated in plaintiff's brief, "net receipts" arrangements were standard when the agreement was executed in 1961. Plaintiff also notes that at that time foreign subpublishers were typically unaffiliated with domestic publishers such as Mills Music. Over time, however, EMI Mills, like other publishers, acquired ownership of the foreign subpublishers through which revenues derived from foreign subpublications were generated. Accordingly, in this case, fees that previously had been charged by independent foreign subpublishers under the instant net receipts agreement are now being charged by subpublishers owned by EMI Mills. Plaintiff asserts that EMI Mills has enabled itself to skim his claimed share of royalties from the Duke Ellington compositions by paying commissions to its affiliated foreign subpublishers before remitting the bargained-for royalty payments to Duke Ellington's heirs.

Ellington’s grandson asserted on appeal that the agreement is ambiguous as to whether "net revenue actually received by the Second Party" entails revenue received from EMI Mills's foreign subpublisher affiliates. The appellate court found no ambiguity in the agreement; the court stated that the agreement “by its terms, requires EMI Mills to pay Ellington’s heirs 50 percent of the net revenue actually received from foreign publication of Ellington’s compositions.” It reasoned:

"Foreign publication" has one unmistakable meaning regardless of whether it is performed by independent or affiliated subpublishers. Given the plain meaning of the agreement's language, plaintiff's argument that foreign subpublishers were generally unaffiliated in 1961, when the agreement was executed, is immaterial.

The court continued by stating that “the complaint sets forth no basis for plaintiff's apparent premise that subpublishers owned by EMI Mills should render their services for free although independent subpublishers were presumably compensated for rendering identical services.” Thus, dismissal of the suit was affirmed.

Ellington v. EMI Music, 651558/10, NYLJ 1202598616249, at *1 (App. Div., 1st, Decided May 2, 2013). 

[Meredith R. Miller]

May 9, 2013 in Celebrity Contracts, In the News, Music, Recent Cases, True Contracts | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 7, 2013

Lil Wayne Loses Endorsement Over Emmett Till Lyrics, But Don't Worry, Celebrating Violence Against Women Is Still Fine

Mountain Dew
As reported here in Rolling Stone, Mountain Dew has terminated its endorsement deal with Lil Wayne because of offensive lyrics in an unauthorized leak of a remix of Future's "Karate Chop."  The offensive lyrics can be found here, except that the online version omits the reference to Emmett Till, a fourteen year old African-American boy who was tortured and killed in Mississippi in 1955, after allegedly having whistled at a white woman.  Lil Wayne's lyrics brag that he will do to a woman's vagina what was done to Emmett Till.

Emmett Till's family was outraged by the reference.  As noted in the New York Times, although Rolling Stone and others have characterized Lil Wayne's response as an apology, the family recognized that it was not an apology. Lil Wayne "acknolwedged" the family's hurt and pledged not to reference Emmett Till in his lyrics in the future.  

What is really striking is the utter lack of comment on the rest of the lyrics.  The reference to Emmett Till imay only be the most offensive thing about the song, but all of the lyrics in Lil Wayne's verse are absolutely vile.  The Times reports that Al Sharpton has been called in to take advantage of this "teaching moment" to help young artists like Lil Wayne understand more about the civil rights movement.  

Violence against women is also a civil rights issue.

[JT]

May 7, 2013 in Celebrity Contracts, Commentary, In the News | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 30, 2013

Movie Producers Sue Michael Keaton for Breach of Contract

KeatonWe are grateful to the website Lexology.com and to Ellen D. Marcus of Zuckerman Spaeder LLP for this informative and interesting post about this complaint filed in the Northern District of Illinois by Merry Gentlemen, LLC against actor and director, Michael Keaton.  According to the complaint, Keaton breached his contract to act in and direct a film called Merry Gentlemen by failing to deliver it on time and by marketing his own version of the film to the Sundance Film Festival.  The film cratered, grossing only $350,000 at the box office.  Moreover, the producers allege that Keaton's various breaches caused "substantial delays and increased expenses in the completion and release of the movie," thus causing the producers to suffer "substantial financial loss."

Ms. Marcus's post picks it up there, citing Restatement 2d's Section 347 on the elements of expectation damages and illustrating what sort of sums the producers might be looking to recover.  Ms. Marcus has to speculate, as the producers cite no figures beyond those required to meet the amount-in-controversy requirement to get their diversity claim into a federal court.

Whether or not the allegations of the complaint are true, they paint a nice picture of the behind-the-scenes machinanations invovled in getting a film out to the viewing public.  According to the complaint, Keaton produced a "first cut" that all agreed was unsatisfactory.  There then followed both a "Chicago cut," edited by the producers and by Ron Lazzeretti, the screenwriter and the producers' original choice for director, as well as Keaton's second director's cut.  

The producers then shopped the Chicago cut to the Sundance Film Festival, where they were awarded a prime venue.  Keaton then allegedly threatened not to appear at Sundance unless his cut was screened.  That was a dealbreaker for Sundance, so despite already having sunk $4 million in to the film, the producers claim they had no choice but to agree to screen Keaton's second cut at the festival.   They did so through a Settlement and Release (attached to the complaint, but not to the online version) entered into with Keaton, which they now claim was without consideration, despite the recital of consideration in the agreement, and entered into under duress.

Despite all of this, the complaint alleges that the Sundance screening was a success, since the USA Today identified "Merry Gentlemen" as one of ten stand-out films screened that year.  But the producers were unable to capitalize on this success, since Keaton's alleged continuing dereliction of his directorial duties resulted in dealys of the release of the film from October of November 2008 to May 2009.  The producers allege that the film was a Christmas movie (or at least was set around Christmas time), so Keaton's delays caused the movie to premiere during the wrong season.  

The producers allege that Keaton continued to refuse to cooperate with them after Sundance.  Somehow, the movie nonetheless was released to some positive reviews:  

The movie, as released (based upon Keaton’s second cut and numerous changes made by plaintiff), received substantial critical praise. Roger Ebert called the film “original, absorbing and curiously moving in ways that are far from expected.” The New York Times’ Manohla Dargis called it “[a]n austere, nearly perfect character study of two mismatched yet ideally matched souls.” David Letterman said on his Late Night  talk show, “What a tremendous film . . . . I loved it.”

Note to the producers' attorneys: if you've got Roger Ebert and Manohla Dargis in your corner, you don't need Letterman (or The USA Today for that matter).

Nonetheless, the film did not succeed, grossing only $350,000, allegedly because of Keaton's failure to promote it.  Indeed, some of the complaints allegations relating to Keaton's promotion efforts suggest some real issues.  Upon being asked by an interviewer if she had accurately summarized the film's plot, Keaton allegedly responded that he had not seen it for a while.  

We note also that Ms. Marcus's post is cross-posted on Suits by Suits, a legal blog about disputes between companies and their executives, a site to which we may occasionally return for more blog fodder.

[JT]

April 30, 2013 in Celebrity Contracts, Film, In the News, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Friday, April 19, 2013

Are Celebrity Party Appearances Like Mr. Saffir's Fantasy Camps?

The end of the semester is near (cue Alice Cooper). Thus, my class has just completed damages and is moving on to third parties. One of the last damages cases we discussed was Hollywood Fantasy Corp. v. Gabor.  In that case, Zsa Zsa Gabor breached a contract with a company started by Leonard Saffir.  Saffir organized and promoted celebrity fantasy camps in which regular people could pay a large fee to spend time with and act with celebrities like Gabor.  When Gabor breached, Saffir had to cancel the camp and his company went bankrupt.  

The Gabor case often is used to illustrate the damage concepts of certainty and reliance.  Saffir could not show that his expected lost profits were certain enough but he was able to prove reliance damages.  When we discuss the case in class, many students scoff at Saffir's business idea as if it was borderline crazy.  However, one student recently drew a parallel between Saffir's plan and the common plan of party promoters who secure celebrity appearances in order to increase attendance at nightclubs and other locales.  In one recent version, Philadelphia promoter Bobby Capone (the modern day Saffir?) contracted with X-Factor host and former Saved by the Bell star, Mario "You'll Always Be Slater to Me" Lopez, to appear at a party Capone was planning months later.  When Lopez canceled without an excuse, Capone, like Saffir, sued for breach, seeking lost profits and reliance damages (though the complaint does not use those exact words).  The comparison's not perfect but it is helpful when trying to understand Mr. Saffir's plans.

And there ends my attempt to compare Mario Lopez to Zsa Zsa Gabor.

[Heidi R. Anderson, h/t to student Rylee Genseal] 

April 19, 2013 in Celebrity Contracts | Permalink | Comments (0) | TrackBack (0)