Tuesday, November 29, 2011
Yesterday, now widely known as "Cyber Monday," I received a marketing email from Patagonia. The message: "Don't Buy This Jacket." The email read in part:
Because Patagonia wants to be in business for a good long time - and leave a world inhabitable for our kids - we want to do the opposite of every other business today. We ask you to buy less and to reflect before you spend a dime on this jacket or anything else.
The advertisement reminded me to "think twice" and instructed not to "buy what [I] don't need." The jacket, "[m]ade of warm, breathable, compressible and stretchy high-loft fleece," is apparently one of Patagonia's bestsellers; retail price of $149.
Ha! Nice try, Patagonia. I will not be manipulated by your reverse psychology. Though, it did remind me of a contracts exam fact pattern I used a few years back that involved an email where the sender said something like "I'm selling my house but, trust me, you don't want to buy my house because it has been a real money pit." Seller also says all sorts of funny and brutally frank things about the house. One of the questions raised was whether this email constitued an offer to contract. I am also reminded of the parking lot of a Grateful Dead show in the early 90's and a gentleman wandering around saying "bad [acid] trips, who wants 'em? I got 'em!" But I digress, though only slightly (e.g., Ship of Fools, see below).
Elvis Costello is also participating in this season of reverse psychology. His message: "don't buy my new box set." In fact, Costello apparently wrote on his website: "Unfortunately, we at www.elviscostello.com find ourselves unable to recommend this lovely item to you as the price appears to be either a misprint or a satire." The price? $225. NBC reports:
Costello tried to get the record company to knock the price down, but was unsuccessful. So he is recommending buying the work of another legendary artist.
"If you should really want to buy something special for your loved one at this time of seasonal giving, we can whole-heartedly recommend, 'Ambassador of Jazz' -- a cute little imitation suitcase, covered in travel stickers and embossed with the name 'Satchmo' but more importantly containing TEN re-mastered albums by one of the most beautiful and loving revolutionaries who ever lived – Louis Armstrong," Costello wrote. "The box should be available for under one hundred and fifty American dollars and includes a number of other tricks and treats. Frankly, the music is vastly superior."
It may be earnest, but I read it as a brilliant marketing ploy. Who would have known that Elvis Costello was issuing a new box set? I mean, who buys physical CDs anymore? And it even comes with a vinyl record... but it is overpriced and you don't want it.
[Meredith R. Miller]
Monday, November 21, 2011
Wednesday, November 9, 2011
A few posts back, I referred to Apple's business model as incorporating relational contracting on a mass consumer scale which made me wonder whether relational contract theory is due for a revival (not that it ever went away). I didn’t attend the conference at Wisconsin honoring Stewart Macaulay although I wish I had. Relational contracting should be the subject of renewed interest given the new business models that incorporate goods, services, and information. On the radio yesterday morning, I heard someone talk about Google's business as being more than a series of searches - it was about services and relationships with its customers. (Okay, maybe those weren't the exact words, but they're close enough). A few weeks ago, a NYT article discussed new technology companies that are assisting musicians in managing their relationships with their fans. In order to survive, many businesses (especially those in the creative industries) will have to reboot for the evolving marketplace. Not all businesses (and by “businesses," I mean musicians, writers and artists who want to get paid and are not backed by large corporate conglomerates) are equipped to do this. Well, make way for companies like Topspin, Bandcamp, FanBridge and ReverbNation, to assist them. These companies help musicians run a band's online business which means they sell music, manage fan clubs and calculate royalty payments. They have found a way to bundle physical and digital goods. How much you want to bet that those digital goods are protected by contracts?
Which brings me to relational contract law. The purpose of these companies is to enable the musician to survive (and even thrive) without being backed by a record company. Now, the musician can directly manage the relationship with the fan. In the past, a fan joined a fan club, bought a ticket to a concert from one vendor, a record from a retailer, a tee shirt from another retailer - you get the picture. With the exception of the rules on the back of the concert ticket and the fan club membership rules, the other transactions were not governed by contract. The fan can now buy everything she or he wants that's band-related from that band's website, subject to the terms and conditions of the website and the licenses that accompany the digital products. Shouldn't the terms of those contracts be considered in light of the existing relationship between the musician and the fan? Wouldn't a relational contracts approach be helpful in analyzing the terms and how they should be interpreted and enforced?
Apple is relevant in this discussion for another reason. If it weren't for iTunes, it's likely that
none of these businesses would exist. (Fun note - the NYT article mentions that the chief executive of Topskin has a tattoo of the logo for NeXT Computer, which was Steve Job's old company).
Thursday, November 3, 2011
Tuesday, November 1, 2011
I admit that the link to contracts law is attenuated, but these are [mis]uses that I come across in scholarship quite frequently, and I am alarmed that if I don't speak up, it will be too late and these abominations will come to be the standard usage.
So, let's start with the least egregious: "an history." Can you even say it aloud in a sentence without contortions? Because the "h" in history is vocalized, the proper form of the preceding indefinite article is "a," not "an." To use "an" in this context is IMHO, doubly pretentious. I suspect that the usage is a holdover from the times when English aristocrats, trying to get in good with their new French overlords, dropped their "h's." This affectation then trickled down like stock options don't, and today in England, as here, dropping one's "h's" is not considered standard. Still, for some reason, we still pretend that we are affecting a French pronounciation of the words "history" and "historic" when in fact we are not. There is therefore absolutely no reason to use "an" before either of those words. This usage is least egregious because it comes up relatively infrequently, but it still drives me crazy because it almost always occurs in texts that are otherwise learned (although sportscasters love to lable every play or incident "an historic occasion"). Why would smart people do such a thing?!?
Alright, on to "fulsome." Fulsome is now likely more often used improperly than properly. It sounds like it means "complete" or "generous" or "ample." It doesn't. It means excessive. Fulsome praise is insincere praise -- praise so over the top as to flip over into its opposite. "Noisome" is similar. It sounds like it means "noisy," but it really means "smelly." Best just to stay away from "some" words.
And finally, the usage that bugs me the most because of its ubiquity is "plethora." Again, I blame sports commentators. They have fallen in love with the misuse of this word and it has infected the literate public. Plethora does not mean "a lot." We have quite a few words that mean "a lot," and to use "plethora" when you mean "a lot" is confusing because "plethora" really means "an unhealthy excess;" not "a lot" but "too many." The word derives from the theory of the bodily humors. Excess of one humor was believed to cause symptoms. A plethora is a pathology.
I am moved to write about this (again) because I did something recently that I never do -- I told a colleague that he had misused the word. I did this because I had heard him do it on two occasions and because I respect him and think he has picked up on a misuse of the word and mistaken the misuse for the correct usage. I would like to think that if I were misusing a word and someone corrected me (as my mother used to do before I fled her jurisdiction), I would eventually get over my embarrassment and be grateful to the person who prevented me (hopefully in private) from compounding the embarrassment through reiteration.
Our conversation revealed that my colleague seemed to be familiar only with the improper usage of "plethora." Still, he argued in populist mode, if the wrong usage is the common usage, it becomes the correct usage. He proposed that we test our theories of the word's meaning by checking how it is used on Westlaw. Well, I know what outcome such a search would produce, but I'm not willing to bow to popular usage in this instance because popular usage is confusing to those of us who know what the word means (and by the way, dictionaries still provide the traditional definition of the term). When a judge writes that the defendant provided a "plethora of arguments" in defense of her conduct, I honestly don't know whether the court is saying that the defendant had many serious arguments that the court needs to a address or that the defendant provided so many lame excuses for her conduct that none of them deserves serious attention. The latter meaning illustrates the power of the word "plethora" properly deployed, and it is indeed a useful word if its meaning is not horribly diluted through misuse.
I concede that one should generally bow to popular usage. I cringe inwardly whenever I hear or see the word "normalcy" (but ethe slippery slope into normalicy), but I cannot honestly claim that the usage is wrong. Still, the Westlaw methodology is highly suspect in my view. When I was a clerk, I was asked to review a draft opinion from one of the other judges on our court. My judge had no substantive differences with the opinion, so she wanted to sign off on it, but for some reason, the other judge (or his clerk) had made reference to some aspect of the case being "much adieu about nothing." After checking with my judge about protocol, I called the clerk responsible for the opinion and told him that the phrase seemed to reference one of Shakespeare's plays entitled "Much Ado about Nothing." Some time later, I received an e-mail from the other clerk informing me that he had decided to make the change I had requested, not because of Shakespeare, but because a Westlaw search indicated that my preferred spelling was the more popular one. I suppose one might say that there are a plethora of reasons for spelling the word in question "ado," but I would say that there is only one reason that matters.
Friday, September 16, 2011
This story is barely (get it?) contract law related, but I just renewed my promise to Jeremy to post to the blog once a week and he did not specify any requirement that the posts be contract related. And, in any event, this New York Law Journal story is written for the blogs:
Months before the onset of winter, the Office of Court Administration has sent into hibernation a 7-foot-tall stuffed bear that briefly made the lobby of the Sullivan County Courthouse in Monticello its lair.
"My position was it takes away from the decorum of the facility," Judge Michael V. Coccoma, the deputy chief administrator for courts outside of New York City, said in an interview yesterday. "It's not that I have anything against taxidermy. But given the seriousness of the business we do in our courts, I felt it was a distraction."
The bear now prowls the private chambers of Acting Supreme Court Justice Frank LaBuda (See Profile), who says it is "beautiful" and "magnificent.
Where did the bear come from?
The bear was killed in October 2006 with a bow by local hunter David Purdy in nearby White Lake. Mr. Purdy asked Justice LaBuda in August if the judge had room for the creature, one of the largest ever taken in the county, in his home.
The judge said he did not, but the bear might find quarters, at least temporarily, in the courthouse where it could serve as a tribute to the area's ecology and love for hunting. By Sept. 2, it was stationed near the post of court officers who quickly dubbed it "Smokey."
A stuffed bear as a symbol of conservation? Justice LaBuda thought so:
"People want to see the bear," Justice LaBuda said. "Actually, it is a tribute to conservation in our state. As you know, black bears were almost extinct in the state except in the Adirondacks. Now, they are actually so plentiful that some people think they are a nuisance here."
You can read the rest of Joel Stashenko's reporting on the bear's eviction here, including a picture of Smokey, Justice LaBuda and Mr. Purdy.
It just so happens that this week's viral video is a commercial for Chuck Testa's taxidermy service. Wonder if he stuffed the bear:
[Meredith R. Miller]
Tuesday, September 6, 2011
Hurricane Irene was not as destructive as predicted for New York City. It did, however, unleash extensive devastation in upstate New York and many farms were severely flooded. In line with an FDA ruling, the New York State Department of Agriculture & Markets has issued a blanket recommendation prohibiting the sale of any crops exposed to flood waters, declaring that food unfit for human consumption.
As a result, the farm that supplies my CSA share (pictured before the flood) was put out of business for the season. I am out my money, but I have tremendous sympathy for the farmers. I am reminded that the CSA is made possible by contracts, which allocate risks from farmer to consumer.
A recent CSA newsletter from Just Food was forwarded to me, and it reflects poingnantly on shared risk:
In New York City Hurricane Irene was much less severe than projected, however, the same cannot be said for many areas in upstate New York, New Jersey, Vermont, and throughout the Northeast. While not all of our CSA farmers were severely affected, others sustained tremendous damage. All week we have been soberly witnessing images of farms under feet of water, hearing stories of farmers who are still unsure of the severity of the damage to their fields, helping farmers think through their next steps and beginning to have what I'm sure will be the first of many conversations with NYC CSA members.
Community Supported Agriculture is a partnership- a mutually beneficial long term relationship between farmers and their members. Shared risk is a concept that is included in every description of CSA and in every membership agreement form. In most years, sharing risk means that a few of the crops that a farmer originally plants and plans to include in shares don't make it in. Occasionally it means a late start to the season due to a wet spring. In 2009, sharing the risk meant few or no tomatoes as most New York farmers were hit with tomato blight. But mostly we don't notice our risk as our shares are supplemented with the bounty of the other 100 varieties of vegetables that CSA farmers have planted.
But the concept of shared risk is very real, and in the wake of Irene we are all reminded of this. No matter how skilled a farmer is, no matter how hard she works, no matter how well he's planned, there was nothing they could have done to prevent the severe flooding. Farmers continue to wait for flood waters to recede so that they can determine the full extent of the damage.
In addition, area farmers received notice from the FDA yesterday that crops covered in flood waters should not be sold for human or animal consumption. While affected farmers are struggling to ensure that they have safe food to provide to their members, yesterday's FDA ruling will likely make it even harder for farms to recover.
Unfortunately, this all comes at the worst time of the season. Money has already been invested in crops that now cannot be harvested, and it is now too late in the season to replant many crops. When bad weather strikes in the spring, farmers have time to replant and recover. This late in the season there simply aren't enough days to start over for many crops, particularly for slower growing winter crops: for instance, winter squash takes 100 days from seed to harvest, potatoes take from 70 to 120 days, turnips 60 days, onions 80 to 150 days. Unfortunately, at this point in the season, there just isn't that much time left.
In addition, CSA farms often don't have crop insurance. Crop insurance is tied to a particular crop, rather than the farm as a whole, and as a result, is better geared for farms that grow large amounts of fewer crop varieties. For this reason, it's very difficult for CSA farmers--who grow 100-150 different crop varieties--to value their crops in order to apply for crop insurance. For CSA farms who do have crop insurance, the insurance doesn't come close to covering their losses, the claims process is incredibly complicated, and reimbursement can take months.
These losses are devastating, but CSA farmers are not just throwing up their hands and walking away. At the same time they greatly appreciate the support that CSA provides, they also feel a tremendous sense of responsibility to their members. As we speak, farmers and their crews are diving in and working hard to assess the damage, begin clean up, and make repairs to fences and barns to make the farm ready and viable for next season. They're also looking at their fields-those that aren't still under water-to figure out how, or even if it's possible, to make the best of the remaining season for their members.
Many CSA core groups and members have reached out to Just Food to find out what they can do to help their farmers. As CSA members, you have already provided stability and support for your farms. Hurricane Irene is an all-too-real example of the kind of weather disaster that can put small family farms out of business. CSA is a vital partnership that can allow farms instead to survive, to return next season and provide the usual bounty to its members.
What your CSA farmers need the most now are your patience and understanding, as well as your commitment to their farm over the long haul.
This reflection is about farms and risks, but it is fundamentally about the contracts that make the CSA possible.
[Meredith R. Miller]
Monday, August 29, 2011
In a case that appears to be about a breach of a construction contract, the plaintiff's attorney receives a benchslap from Judge Markey in Queens [ouch!]:
Tuesday, August 23, 2011
I've survived a contracts conference shipwreck. And now I can say I've experienced an earthquake in the middle of teaching Lucy v. Zehmer. Apparently the epicenter is in Mineral, Virginia, population 500. Coincidentally, this looks to be only about a two-hour drive from MCKenney, Virginia, home of the Ye Olde Virginnie.
I hope everyone and everything nearby is safe.
[Meredith R. Miller]
Wednesday, June 22, 2011
Trust me when I tell you that it is very difficult to get friends, family, students and acquaintances engaged in a meaningful discussion of "mandatory arbitration." Trust me further that there is now a wonderful documentary that manages to make this and other civil justice topics interesting and engaging for everyone. (Indeed, my viewing companion, proudly not a lawyer, turned to me at one point in the movie and whispered "didn't you write a paper about something like that?")
Last night, I was fortunate enough to invite myself via twitter get invited to a screening of Hot Coffee at HBO. Hot Coffee is a must see documentary about the way that business interests, "tort reform," judicial elections and "mandatory arbitration" have systematically worked in concert to deny plaintiffs access to civil justice. It is the work of the energetic and passionate director Susan Saladoff who spent 25 years as a trial lawyer before becoming a filmmaker. The documentary is well-conceived and thought provoking. It takes some very complex topics and organizes them and presents them through compelling personal stories.
The title "Hot Coffee" refers to the iconic case that is ubiquitous in pop culture as a symbol of the frivolous lawsuit: the woman who sued McDonalds because she was served a coffee that was too hot. The film starts very strong by retelling this story through interviews with the plaintiff's family. This challenged me (and from the gasps in the theater, I suspect everyone else viewing the film) to see the case in an entirely different light. With that strong start, the viewer is engaged and ready to hear about damage caps, judicial elections and mandatory arbitration in consumer and employment contracts.
Here's the trailer:
After the film, there was a Q&A session moderated by Jeffrey Toobin. He appeared to receive the movie very favorably, noting that the fine print in a cell phone contract is not one of the sexy topics that CNN hires him to discuss on the evening news segments (which reminded me of this Dahlia Lithwick piece in Slate, which seemed to begrudgingly report on AT&T v Concepcion).
Toobin did mention one frustration, which could be leveled as a critique of the film -- that it only presents one point of view. Notably absent and/or unwilling to participate were voices from the "other side," i.e., those in favor of damage caps and mandatory arbitration. Saladoff's response, I thought, hit the nail on the head: in so many words, she said that she wanted to tell this side of the story, and the voices in favor of these reforms already had a well-financed platform (and, indeed, overtaken the public consciousness). Perhaps I am partial to her response because her film paints a picture in line with my world view, and I am just so thrilled to finally see an engaging and accessible presentation explaining the systematic erosion of civil justice at the behest of corporate interests.
Our students come to law school generally ignorant of or misinformed about tort reform, mandatory arbitration and many of the other topics presented in this film. However, they do at least know of handful of cases -- OJ, Bush v Gore and, of course, the hot coffee case. I have no doubt that this film will be used in the classroom. It is masterfully done and captivates those uninitiated with these topics as well as those who have studied them (and even includes a few clips of interviews with George Lakoff). Please tune in to HBO on Monday night.
[Meredith R. Miller]
Wednesday, June 1, 2011
The University of Michigan Law School is proud to announce its newest publication, the Michigan Journal of Private Equity and Venture Capital Law.
The Journal is published semi-annually by the students of the University of Michigan Law School in conjunction with the ABA Committee on Private Equity and Venture Capital.
The Journal addresses the regulatory, securities, corporate, tax intellectual property, and other legal issues involved with private equity and venture capital, including with respect to both investments by funds and the formation of funds.
The Journal is currently accepting scholarly papers and paper proposals for publication in our first issue. We anticipate publishing the issue in late fall 2011. Articles for this issue are generally between 25 and 40 pages long.
Please send drafts, proposals, or inquiries to Jeffrey Koh, Executive Article Editor, at email@example.com, or via ExpressO.
Friday, May 13, 2011
The Center for Transnational Litigation and Commercial Law at NYU recently launched a new blog,dedicated to, well, litigation and commercial law around the globe. It's called Transnational Notes and is edited by Franco Ferrari, with assists from other NYU Law faculty and students. It also welcomes outside contributions.
The first month or so has already produced a number of interesting posts on such topics as the CISG, international arbitration, and cross-border mobility of European corporations. It bids fair to be a very popular and useful resource to keep up on new developments from one of the country's top commercial law centers.
FGS (via Clay Gillette)
Monday, April 18, 2011
It is time to get into the Passover spirit by revisiting Fallsview Glatt Kosher Caterers v. Rosenfeld, 7 Misc.3d 557 (Civ. Ct. Kings County, NY, 2005), which gave us the opportunity to pause and consider: is a “Passover retreat” predominantly a good or service under the UCC? (Which, also came to be known as an added, fifth question for the youngest child at the seder).
Plaintiff Fallsview operated a retreat during Passover at Kutscher’s Country Club. (A Jewishy resort in the Catskills where, as a young child, I spent all of my grandmother’s laundry quarters on Ms. Pac-Man). For those that did not grow up going to B’nai Brith conventions in “The Country” (that’s what the NYC Jews called it), see this video, which comports with my memory.
Fallsview’s “retreat” included accommodations, entertainment and kosher food service. Willie Rosenfeld allegedly reserved spaces for 15 members of his family and agreed to pay $24,050 for the retreat. Fallsview made necessary arrangements, but Rosenfeld failed to appear at the hotel and did not remit the payment. Fallsview sued Rosenfeld for breach of contract.
Rosenfeld moved to dismiss, pointing to the statute of frauds. Rosenfeld argued that there was no agreement and, even if there was, it was oral and did not satisfy UCC 2-201, which requires that contracts for the sale of goods for the price of $500 or more be in writing. Fallsview’s response: the UCC does not apply because the Passover retreat is a service, not a good.
Because the alleged contract called for accommodations, entertainment and food, it was a hybrid transaction, and the court looked to whether goods or services predominated. Rosenfeld argued that the retreat was about food, a conclusion that he argued was “compelled by the very nature of the Passover holiday”:
The essential religious obligation during this eight day period- and the principal reason why people attend events similar to the Program sponsored by plaintiff- is in order to facilitate their fulfillment of the requirement to eat only food which is prepared in strict accordance with the mandate of Jewish law for Passover, i.e., food which is ‘Kosher for Passover’. It is the desire to obtain these ‘goods'-and not the urge for ‘entertainment’ or ‘accommodations'-that motivates customers to subscribe to such ‘Programs.’
But the court noted all of the possible daily activities at the retreat included “tennis, racquetball, swimming, Swedish massage, ‘make over face lift show,’ ‘trivia time,’ aerobics, bingo, ice skating, dancing, ‘showtime,’ ‘power walk,’ arts and crafts, day camp, ping-pong, Yiddish theater, board games, horse racing, horseback riding, wine tasting, and indoor bocci-and that is only through Wednesday.” There were also “ traditional and Orthodox religious services, lectures on religious and other subjects (presumably with a religious or cultural perspective), and a series of activities that are clearly designed to be of interest to families of observant Jews during a highly significant period in their calendar. “ The all-inclusive price covered these activities, as well as accommodations and food.
The court (Battaglia, J., who coincidentally, used to teach at my home institution), sided with Fallsview and decided the essence of the retreat was a “family and communal ‘experience’” and, therefore, was defined primarily by services and not by goods. Rodenfeld’s motion to dismiss was denied.
[Meredith R. Miller]
Monday, January 17, 2011
"We're happy to have finally reached an agreement with this vital American species, and we thank all the ground squirrels who have been carrying on in good faith for the past 18 months while we worked this out," a jubilant but visibly exhausted Interior Secretary Ken Salazar told reporters at a press conference Tuesday. "Their continued participation in our forests, meadows, and prairies is an integral part of our natural world, and I think our generous offer reflects that fact."
[Meredith R. Miller]
Yes, it is finally true, Apple's exclusive deal with AT&T is over, and the Iphone will now be available from Verizon. Verizon is widely believed to be a much more reliable carrier (though, some question whether the Iphone will test Verizon's system).
What if you already have an AT&T iphone and you want to walk away from the contract so you can get a Verizon Iphone? (The hardware in the phones are slightly different, so you cannot use your AT&T phone on the Verizon network).
The folks at LifeHacker have posted a how-to guide-- that is, how-to efficiently breach your AT&T contract. They discuss (1) how to figure out the early termination fee owed to AT&T (here's an ETF calculator) and then (2) how to eliminate or avoid that cost by, among other suggestions, reselling your old phone. The advice is quite entertaining -- with suggestions such as attempting to negotiate out of the early termination fee (described for some reason as "unethical"), challenging formation based on unilateral amendments, or assignment/novation.
[Meredith R. Miller]
Friday, December 17, 2010
Thursday, November 25, 2010
Judge Frank Easterbrook may h as written the most famous article on The Law of the Horse, but ContractsProf blogger Meredith Miller (Touro) has no peer when it comes to the Law of the Turkey. Past Tanksgivings have featured her analysis of legal turkeys. Or rather, turkeys involved in legal disputes.
Here are some of her greatest hits from Turkey Days past. Enjoy!
The Law of the Turkey (2006)
ContractsProf Is Not Chicken (2008)
The Law of Turkey Leftovers (2008)
Monday, November 15, 2010
The Lumen Christi Institute and the University of Chicago's Department of Political Science will be hosting the 2010 Yves Simon Memorial Lecture this Wednesday, November 17. The speaker is Paul Sigmund, an authority on political theory and Latin American politics. Here's the description of the lecture:
Given a renewed interest in the political thought of Thomas Aquinas, many 20th century political philosophers (e.g. Yves Simon, Jacques Maritain, and Alasdair MacIntyre) have brought Aquinas’ thought to bear on questions within contemporary liberal democracies. This lecture will consider this Thomistic renewal and its influence in both European and Latin American Christian Democratic parties.
Wednesday, May 12, 2010
There is a Grateful Dead exhibit “currently playing” at the New York Historical Society, with lots of knick knacks on loan from the archives at UC Santa Cruz. (Jon Stewart once did a funny bit about a job listing for an archivist of the collection, though it apparently peeved serious archivists everywhere). Here's more information on the exhibit, including the insights of a sociology professor who has written a book called Deadhead Social Science and sounds like she's study the culture like Jane Goodall studied chimps.
The exhibit was a bit sparse and dissatisfying, and it mostly felt like at $12 excuse to lure you into the gift shop to buy a large peace sign tapestry or small stuffed dancing bear for your kids. (It still beat grading exams, of course). There were a few cool pictures of the Fillmore East, which I suppose were obligatory because it was after all an exhibit at the New York Historical Society.
It should be no surprise that, for me, the most interesting thing at the exhibit was a contract – actually, the notice of an exercise of an option pursuant to a contract. I learned that the Grateful Dead signed their first contract with Warner Bros. in 1966. They were the first rock band signed to the Warner label. The exercise of option (pictured, click to enlarge) was dated 1968 and it extended the terms of the 1966 contract through 1969. There was not a copy (at least that I saw) of the 1966 contract.
In the document, “notice is herby given” to Jerome Garcia and his bandmates that “the undersigned, WARNER BROS. – SEVEN ARTS RECORDS, INC., has exercised and hereby exercises its option under the contract referred to above, for with respect to the Term specified, upon and subject to all of the terms and conditions set forth above and in said contract.” The exercise came with a $30,000 advance and 8% of domestic royalties, and 5% of foreign royalties. The rest, as they say, is history.
More than anything, I came away with a sense that this band was a superb marketing machine and had a really good business sense, or at least someone advising them that did…. and still does.
[Meredith R. Miller]