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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)

Wednesday, July 9, 2014

Aereo Loses in Supreme Court and so do Consumers – for Now

By Myanna Dellinger

Recently, I blogged here on Aereo’s attempt to provide inexpensive TV programming to consumers by capturing and rebroadcasting cable TV operators’ products without paying the large fees charged by those operators.  The technology is complex, but at bottom, Aereo argued that they were not breaking copyright laws because they merely enabled consumers to capture TV that was available over airwaves and via cloud technology anyway. 

In the recent narrow 6-3 Supreme Court ruling, the Courts said that Aereo was “substantially similar” to a cable TV company since it sold a service that enabled subscribers to watch copyrighted TV programs shortly after they were broadcast by the cable companies.  The Court found that “Aereo performs petitioners’ works publicly,” which violates the Copyright Act.  The fact that Aereo uses slightly different technology than the cable companies does not make a “critical difference,” said the Court.  Since the ruling, Aereo has suspended its operations and posted a message on its website that calls the Court’s outcome "a massive setback to consumers."

Whether or not the Supreme Court is legally right in this case is debatable, but it at least seems to be behind the technological curve.  Of course the cable TV companies resisted Aereo’s services just as IBM did not predict the need for very many personal computers, Kodak failed to adjust quickly enough to the digital camera craze, music companies initially resisted digital files and online streaming of songs.  But if companies want to survive in these technologically advanced times, it clearly does not make sense to resist technological changes.  They should embrace not only technology, but also, in a free market, competition so long as, of course, no laws are violated.  We also do not use typewriters anymore simply to protect the status quo of the companies that made them.

It is remarkable how much cable companies attempt to resist the fact that many, if not most, of us simply do not have time to watch hundreds of TV stations and thus should not have to buy huge, expensive package solutions.  Not one of the traditional cable TV companies seem to consider the business advantage of offering more individualized solutions, which is technologically possible today.  Instead, they are willing to waste money and time on resisting change all the way to the Supreme Court, not realizing that the change is coming whether or not they want it. 

Surely an innovative company will soon be able to work its way around traditional cable companies’ strong position on this market while at the same time observing the Supreme Court’s markedly narrow holding.  Some have already started doing so.  Aereo itself promises that it is only “paus[ing] our operations temporarily as we consult with the court and map out our next steps.”

 

 

July 9, 2014 in Commentary, Current Affairs, E-commerce, Famous Cases, Film, In the News, Music, Recent Cases, Television, Web/Tech | 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)

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

Halftime Show: Is the wholesomeness of the NFL M.I.A?

NFL v. MIA: we've mentioned issues related to this incident on this blog in the past.  But, if you ask me, it just got good.

Here's the background: at the 2012 Superbowl, this little flip of the bird happened during the halftime show:

The NFL has since sued (in arbitration) M.I.A. (the bird-flipping artist in the video above) for $1.5 million.  The NFL’s claim?  It claims that M.I.A. breached her contract because the “offensive gesture” was “in flagrant disregard for the values that form the cornerstone of the NFL brand and the Super Bowl."  In the contract, she apparently acknowledged “the great value of the goodwill associated with the NFL and the tremendous public respect and reputation for wholesomeness enjoyed by the NFL."

The case, it sounds, comes down to what is “offensive” and what exactly are the “wholesome” values of the NFL.  This FoxSports column does a great job explaining why the lawsuit is “laughable” – with video footage as evidence of just how wholesome the NFL is.

A video of M.I.A. has recently surfaced.  In the video, she (rather articulately) explains the absurdity of the lawsuit.  As 411Mania.com describes:

[M.I.A.] says the NFL is "scapegoating me into trying to set the goalpost for what is offensive in America." She notes that the picture in which she is seen giving the middle finger also has a group of sixteen year-old girls who were selected from a high school in Indianapolis who are in cheerleader outfits with their "hips thrusted in the air, legs wide open, in this very sexual...sexually provocative position."

Here’s M.I.A. regarding the lawsuit, which she describes as  "a massive display of... powerful corporation dick shaking."  In light of the 16-year-old cheerleaders on stage behind her, she frames the issue in the lawsuit as whether female sexual exploitation or empowerment is more offensive.  Interesting stuff:

[Meredith R. Miller]

September 26, 2013 in Film Clips, In the News, Music, Sports, Television | 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)

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)

Thursday, August 2, 2012

Discussion of Consideration over at Concurring Opinions

Paul_McCartney_Over at Concurring Opinions, David Hoffman has called our attention to a "bizarre" consideration issue at the Olympics.  Professor Hoffman liniks to this story in The USA Today, according to which the performers at the Olympics halftime show -- whoops, make that opening ceremonies -- including Paul McCartney, donated their time.  According to The USA Today, the performers received a mere one pound for their performances, and that one pound was paid in order to make the performers' agreements with the Olympics binding.

Professor Hoffman comments as follows:

If true, I take it that British law takes the position that nominal consideration can bind obligees, but that “false” nominal consideration can’t.  Thus, the organizers had to both promise to pay McCartney a pound and actually pay it before the ex-Beatle was bound to perform.

To my  mind, this is the least good resolution of the consideration problem possible.  Look: either consideration should mean something – bargained for exchange motivating actual counter-promising – or parties should be free to dispose of the requirement of consideration entirely.  In the United States, only Pennsylvania has taken that sensible latter position.  The rest generally tend to require actual bargained for exchange, excepting only charitable subscriptions, which the Olympics are not.  The Brits, who handed us this mess in the first instance, have apparently now embraced the unfortunate, mumbo-jumbo, hybrid, which reduces the sensible formality of consideration to a bit of a magical contract theatre.  Does anyone think that that pound of consideration actually motivated McCartney’s promise to perform?

Interesting comments follow, including those of Patrick O'Donnell, to whom we tip our virtual hats for having directed us to the Concurring Opinions post.

Unfortuantely, we have at present nothing substantive to add to the learned discussion of at Concurring Opinions.  However, we would like to observe that perhaps Sir Paul is happy to work for nominal consideration given that just a few weeks ago, as reported by the BBC, concert organizers pulled the plug on him and Bruce Springsteen because they performed past a curfew in Hyde Park.

Band member and erstwhile proprieter of "Da Bing," Steven Van Zandt, tweeted rhetorically "When did England become a police state?"  

[JT]

August 2, 2012 in In the News, Music, Sports, Weblogs | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 25, 2012

Bratz v. Gaga in Breach of Contract Suit

The_Monster_Ball_-_Poker_Face_revamped2-tweakBratz dolls are no stranger to the blog - we've previously blogged about the Bratz' travails with Barbie.  For those uninitiated, in a previous post, our editor D. A. Jeremy Telman described Bratz as barbies that "dress like prostitutes" (or, his sister did).  Anyway, Bloomberg now reports that Bratz his initiated a contract suit against Lady Gaga (really, her management company).  From Bloomberg:

Pop star Lady Gaga and her management company were sued by MGA Entertainment Inc., the maker of Bratz toys, for failing to approve a line of dolls in her image.

The Van Nuys, California-based company, alleging breach of contract in New York state court, is seeking more than $10 million in damages from the pop star, her management company, Culver City, California-based Atom Factory, and Los Angeles- based Bravado International Group, a merchandising company that works with musicians and music groups.

MGA Entertainment says in the complaint that it agreed to produce dolls in Lady Gaga’s image in December 2011 at Bravado’s “request and insistence” and paid the company a $1 million fee in anticipation of shipping the products to retailers this summer in time for the holiday selling season.

In April, Bravado’s Chief Executive Officer, Tom Bennett, told MGA’s chief executive officer, Issac Larian, that Lady Gaga wanted to delay production and shipping of the dolls until her new album is released in 2013, according to the complaint. MGA says the defendants have continued to withhold final approval in order to delay marketing the dolls until next year and instead sell a licensed Lady Gaga perfume called “Fame.”

‘Bad Faith’

“Defendants’ conduct is egregious, in bad faith and is pretextual, especially in light of the fact that MGA has, among other things, paid Bravado a $1,000,000 advance, agreed to an excessively generous royalty rate, invested millions in the preproduction of the Lady Gaga dolls and put its reputation and goodwill on the line in order to secure distributors and retail shelf space,” MGA Entertainment said in the complaint.

Amanda Silverman, a spokeswoman for Lady Gaga, said the singer hasn’t seen the complaint and has no comment.

“This is a dispute between Universal Music Group’s merchandising company and MGA,” Silverman said in an e-mail. “There was no legitimate reason for dragging Lady Gaga into that dispute. Lady Gaga will vigorously defend MGA’s ill- conceived lawsuit and is confident that she will prevail.”

Peter Lofrumento, a spokesman for Vivendi SA’s Universal Music Group, the parent company of Bravado, said in an e-mail that the claims in the suit are meritless and the company will vigorously defend itself in court.

A telephone message left at the headquarters of Atom Factory wasn’t immediately returned.

[Meredith R. Miller]

 

 

July 25, 2012 in Celebrity Contracts, In the News, Music, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 18, 2012

Not Enough (Courtney) Love to Go 'Round?

Courney Love is no stranger to ContractsProf Blog.  I am beginning to think I could teach the whole course through her legal escapades.  Here's a new contracts story from Celebuzz (venerable site of celebrity exclusives):

Courtney Love has found herself wrapped up in legal woes after her former assistant filed a wrongful termination, nonpayment of wages and breach of contract lawsuit last week. But the tables may soon be turned.

Not only has Love’s camp disputed Jessica Labrie‘s claims as “completely unfounded,” but it now asserts that the former employee could find herself in hot water for the suit.

What did Labrie do wrong?

“Miss Labrie signed a very solid confidentiality agreement,” the former Hole frontwoman’s rep, Steve Honig, exclusively tells Celebuzz. “If she has decided to breach that agreement by releasing privileged information covered within that agreement, she could find herself in serious legal jeopardy.”

The statement comes after Celebuzz exclusively uncovered recordings of Love admitting that she owed more than $100,00 to debtors, including a lawyer and a landlord.

In a series of voice messages left for Labrie, the “Pretty on the Inside” artist — the widow of iconic Nirvana frontman Kurt Cobain — said she was in deep debt and could not shell out the woman’s wages.

“What am I supposed to do? Not eat? Live on the streets?” Love bemoaned.

Between the leaked Love tapes and Labrie’s confidentiality contract, the conflict seems to be heating up to a contentious court battle.

Believe it or not, this is relevant to something I am currently researching.  I'm in the early stages of a paper on confidentiality agreements and what exactly they are good for beyond an in terrorem effect (I mean, once the secret is out, it is no longer a secret and how do you prove damages?).  One of the things they are good for is exemplified here: to use defensively.  Assistant sues Courtney Love for breach of contract and Love defends (or countersues) by alleging breach of a confidentiality agreement.

If you are interested, Celebuzz has actually posted the complaint.  If I represented Love, in her papers somewhere, I would write: "Go on, take everything, take everything, I want you to...": 

[Meredith R. Miller]

 

July 18, 2012 in Celebrity Contracts, In the News, Music, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 19, 2012

Former Napster CEO Sues Best Buy in Connection with Sale to Rhapsody

As reported in the Minneapolis/St. Paul Business Journal, former CEO of Napster, Christopher Gorog, filed suit May 31, 2012 against Best Buy in the U.S. District Court in Minneapolis alleging breach of contract, unjust enrichment and breach of good faith and fair dealing, claiming the electronics chain has failed to honor his 2008 employment agreement.  Gorog claims that Best Buy did not honor the terms of his severance agreement and short-changed him when it sold off Napster to Rhapsody in 2011.

Gorog was chief executive of Roxio when it acquired the music sharing service, Napster, which the Business Journal characterizes as "copyright violating" until Gorog turned it into a "legitimiate business" with annual music sales of over $100 million (we are shocked, shocked to learn that there were copyright violations associated with Napster). 

Best Buy bought Roxio/Napster in 2008 for $121 million, and Gorog became a Best Buy employee. Gorog now alleges that he was to be paid up to $5.8 million if Best Buy sold or shuttered Napster before March 2012.   Gorog left the company in 2009 after unsuccessfully trying to convince execs to continue investing in Napster. He now claims that the sale of Napster to Rhapsody was designed to prevent him from getting his fair share from the deal.

We have not been able to locate the complaint, but we think it looks something like this:

 

[JT & Christina Phillips]

 

June 19, 2012 in Music, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 29, 2012

Breach of Contract Suit Filed Against Wayne Newton

According to USAToday.com, Wayne Newton, aka Mr. Las Vegas, is being sued for breach of contract by  the company that teamed with Newton to turn his 40-acre estate, called Casa de Shanandoah, into a museum. The company, CSD, LLC (CSD), purchased the rights to convert Newton’s 40-acre estate, which features South African penguins, Arabian horses, paintings by Renoir and 17th century antiques collected from European castles, into “Graceland West."  CSD  now alleges that Newton, along with his wife and her mother have unreasonably delayed the project. 

The complaint states that under the terms of the museum deal, the Newtons agreed to move to a $2 million home on the estate constructed by CSD, so that the mansion, which serves as the Newtons current residence, could be converted into a museum.  However, CSD alleges that the Newton family refused to relocate or turn over personal memorabilia.  Graceland West is supposed to feature certain animal attractions as well, but right now there are an extra 35 horses on the property along with large vicious dogs that Mr. New ton allows to roam freely, in spite of the fact that the dogs have attacked and bitten people on more than a dozen occasions. The dogs are also credited with killing 75 birds in the estate's aviary, as well as the occasional peacock.

The complaint details the delapidated condition of Casa de Shanadoah before its infusion of $30 million and its efforts to improve the conditions on the estate.  If you have a interest in descriptions of horses wallowing in their own feces, this is the complaint for you. 

Adding additional spice to the story, the complaint also claims that Newton sexually harassed a female equine management speicalist who was hired to train the horses for hte exhibit.  She is allegedly threatening suit against the parties to the lawsuit.  As reported by USAtoday.com, Newton’s lawyer, J. Stephen Peek, responded to the sexual harassment claims saying the accusations are merely an attempt to “obtain financial gain,” and the woman has been fired.  

Foxnews.com reports that the lawsuit seeks to have the Newton family immediately vacate their estate, Casa de Shenandoah, and allow the $50 million project to move forward.  However, the Newton family claims the lawsuit is a preemptive strike based on their plans to sue the company for breach of contract after multiple construction delays.  The family plans to file a countersuit challenging CSD’s allegations.  

For some reason, Wayne Newton has not played in Valparaiso recently, so we had to go to YouTube to get a sense of what this incomparable performer is like.  Here's a taste:

 

[JT & Christina Phillips]

May 29, 2012 in Celebrity Contracts, In the News, Music | Permalink | Comments (1) | TrackBack (0)

Monday, April 30, 2012

Elizabeth Travis Sues Ex-Husband Randy Travis for Breach of Management Contract

Randy_TravisWe were hoping to bring you a copy of the complaint from the EOnline site, but the link seems to be broken (we are keeping it here in case it comes back up).  In any case, the EOnline provides the basics here.  Apparently Elizabeth Travis served as manager for her husband, Randy Travis (pictured)  for nearly 30 years, including throughout their 19-year marriage.  After their divorce, the parties allegedly agreed that she was to continue to serve as his manager but Elizabeth Travis now claims that the singer breached that agreement.  According to the complaint (as summarized on EOnline):

"[Randy] had a large truck, an armed guard and several other men" turn up at her Music Row office and remove "practically all of the property and business records" from her custody, including computers, photographs and framed record plaques.

It's not clear from these reports (and that's why we'd love to see the complaint) if her claim is that this conduct constituted a constructive termination of the management agreement or if there was some separate termination letter.  If the former, than one is put in mind of Schwarzenegger's rather poorly delivered "Consider that a divorce." 

 

According to HuffPo, Mr. Travis is unimpressed: "It is unfortunate that it's come to this," Travis said. "We believe the lawsuit lacks merit and that we have legal defenses to her claims."

[JT]

April 30, 2012 in Celebrity Contracts, In the News, Music, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Thursday, April 26, 2012

Professor DeAngelis on Substantial Performance

Today, we bring to a provisional close (pending the composition and YouTube posting of more contracts-based songs) our series of posts featuring   Professor Mark DeAngelis's "Law Lessongs."  Previous posts have shared songs based on Raffles v. Wichelhaus, the UCC's Battle of the Forms (2-207),substantial performanceoffersmixed contracts, and the Mirror Image Rule from Professor DeAngelis's YouTube site.  

MdeangelisToday, we offer Professor DeAngelis's song on the Statute of Frauds, which he introduces as follows:

This is a "Law Lessong" - a law lesson in a song - that I wrote to help students remember the 6 categories of contracts that require a writing in order to be enforceable. 

The Statute of Frauds Song
Lyrics by M. DeAngelis
Melody based on "Jamaica Farewell"

Oh, I'm glad to say, that any day,
An oral contract is still OK.
But it's a fact, for 6 kinds of pacts,
The Statute of Frauds requires a written contract.

Please, oh please, won't you marry me?
I will give you riches and jewels that shine.
I'll say "I do" and marry you,
As soon as you sign on the dotted line!

Oh, I'm glad to say, that any day,
An oral contract is still OK.
But it's a fact, for 6 kinds of pacts,
The Statute of Frauds requires a written contract.

If one day, a party say
The debt of another she guarantees.
If no writing, there's no denying,
The contract lacks enforceability.

  

Ah, but don't forget, you may enforce it yet
If leading object of the debt
Was to benefit the one who said it
Then an oral contract the law will permit.

When an estate debt cannot wait
The executor pledges payment pers'nally 
That pledge is toast from coast to coast,
When the promise is made simply orally.

Oh, I'm glad to say, that any day,
An oral contract is still OK.
But it's a fact, for 6 kinds of pacts,
The Statute of Frauds requires a written contract.

If it appears that within a year,
The contract performance cannot be done.
Do not frown, just write it down
And the parties' intentions won't be undone.

Ah, but don't forget, you may enforce it yet
Even lifetime employment
Enforceability applies orally
Though long term sounding it appears to be.

If its land we understand 
That's the subject of an interest transferring
If money's spent even just for rent 
Of more than a year you need some scribbling.

Ah, but don't forget, you may enforce it yet
If a Buyer's made partial payment
And entered the land or built something grand
Or if promissory estoppel rules take command.

Finally, under the UCC, 
A sale of goods worth 500 or more.
The UCC treats writings differently
And a full written contract may not be in store.

Oh, I'm glad to say, that any day,
An oral contract is still OK.
But it's a fact, for 6 kinds of pacts,
The Statute of Frauds requires a written contract.

[JT]

April 26, 2012 in Music, Teaching | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 18, 2012

Professor DeAngelis on the Mirror Image Rule

MdeangelisWe have previously posted links to Professor Mark DeAngelis's "Law Lessongs" on Raffles v. Wichelhaus, the UCC's Battle of the Forms (2-207), substantial performance, offers and mixed contracts from Professor DeAngelis's YouTube site .  

A nice companion piece to the Battle of the Forms and the offer song is this law lessong about the Mirror Image Rule, which professor DeAngelis introduces as follows:

This is a "Law Lessong" - a law lesson in a song - that I wrote to help students consider the application of the Mirror Image Rule to contract acceptances. This song deals with the issues of acceptance of contract offers. At Common Law, the Mirror Image Rule required that the acceptance language mirror that of the offer. Any different or additional language may convert the attempted acceptance into a counteroffer - terminating the ability to accept the original offer. The modern trend is for courts to soften the MIR by looking at the substance and meaning of additional language - finding counteroffers where the attempted acceptance manifests an intent to contract only under the new or different terms.

Mirror Image Rule
Lyrics by M. DeAngelis
Tune: Secret Agent Man

There's a rule of contract law that's danger,
For businessfolks to whom contract law's a stranger.
With each offer in the trade,
How is acceptance made?
You don't want to risk a counteroffer!

 


Refrain: Mirror Image Rule, Mirror Image Rule, The language of acceptance and the offer must be the same.

Any different language could be trouble.
Add another term - you've got trouble doubled!
At Common Law it's true,
With additional language you're through.
No acceptance here, it's counteroffer.

Refrain

[JT]

April 18, 2012 in Music, Teaching | Permalink | Comments (0) | TrackBack (0)

Monday, April 16, 2012

Mark DeAngelis's Mixed Contracts Law Lessong

MdeangelisWe have previously posted links to Professor Mark DeAngelis's "Law Lessongs" on Raffles v. Wichelhaus, the UCC's Battle of the Forms (2-207), substantial performance, and offers from Professor DeAngelis's YouTube site .  

Today, we share his song about mixed contracts -- that is, how one decides whether a contract is one for goods, covered by the Uniform Commercial Code, or for services, covered by general rules of contract law

Here is his explanation of the lessong:

This is a "Law Lessong" - a law lesson in a song - that I wrote to help students consider the problem of mixed contracts under the Uniform Commercial Code. The mixed contract or "hybrid contract" involving both services and the sale of goods can be problematic for students. If the contract is predominantly one for the sale of goods, then the law of article 2 of the UCC applies. Often, this determination, that of which law applies, leads to an obvious resolution of the underlying legal issue. This song does not so much present students with strategies to make this determination, but acts as a reminder to do the "predominant purpose" analysis in the first place.

 

The Mixed Contract Song
By Mark DeAngelis

In a mixed contract, if issues arise,
In a mixed contract, what law applies?
With a mixed contract the UCC should,
If the predominant purpose is a sale of goods

Just last week I went to the store
I needed some carpet to cover my floor
The salesman said, "If you buy from me,
It's a special deal -- the installation is free."

The workers came in, they put the rug down.
"This carpet's not right," I said with a frown.
Ah, luckily with the UCC,
There's "perfect tender" and warranty.

A mixed contract, if issues arise,
A mixed contract, what law applies?
With a mixed contract use the UCC
If it's a sale of goods, predominantly.

With a Mixed contract, -- goods and services, too.
In a Mixed contract what law will do?
With a mixed contract under the UCC,
There's perfect tender and warranty.

[JT]

April 16, 2012 in Music, Teaching | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 11, 2012

A Song About Offers

We have already posted links to Professor Mark DeAngelis's "Law Lessongs" on Raffles v. Wichelhaus, the UCC's Battle of the Forms (2-207), and substantial performance.

Once more unto the breach: today we offer this number on offers from Professor DeAngelis's YouTube site .  Here is his explanation of the lessong:

This is a "Law Lessong" - a law lesson in a song - that I wrote to help students consider the issues surrounding the making of a contract offer. When does negotiation coalesce into an offer that may be accepted? This view looks to language, surrounding circumstances and certainty and definiteness as factors to consider in finding an outward manifestation of present intent to be bound to a contract. I hope that it is useful to you.

MdeangelisThe Offer's Real
Lyrics by Mark DeAngelis
Tune: based on St. Anne's Reel (public domain)

Paul went off to work today,
Unaware of what might come his way,
Through e-mails, calls and letters and texts,
He wondered if he'd make a deal.

Communication constantly;
Negotiation seeming endlessly,
How can he tell when the offer's made
To step in and seal the deal? Manifestation of a present intent, To perform a contract in any event, Look at the language that was sent, To determine if an offer's real. I offer, I promise, I covenant to Render contract performance direct to you This is the language that will do To determine that an offer's real

A court of law with objective bent
Will not unearth subjective intent
Read the signs from what's been shown
To determine if the offer's real.

An advertisement it's been said
Is often not an offer, but instead
An invitation to make offers to buy
If the seller wants to seal a deal Manifestation of a present intent, To perform a contract in any event, What circumstances are present To determine if an offer's real. Language expression may hold the key, Along with what circumstances there may be, Definiteness and certainty Will determine if an offer's real.

 

With our terms now there must be
Sufficient definiteness and certainty
On each and every of the law's demands
For a contract to made for real.

Sufficiently certain, sufficiently clear
With evidence for the court to hear
To grant relief in the event of breach
Will determine if the offer's real. Manifestation of a present intent, To perform a contract in any event, Sufficiently certain and definite To determine if an offer's real. Language expression may hold the key, Along with what circumstances there may be, Definiteness and certainty Help determine if an offer's real. I offer, I promise, I covenant to Render contract performance direct to you This is the language that will do To determine that an offer's real

[JT]

April 11, 2012 in Music, Teaching | Permalink | Comments (0) | TrackBack (0)

Monday, April 9, 2012

Professor DeAngelis on Substantial Performance

We have already posted links to Professor Mark DeAngelis's "Law Lessongs" on Raffles v. Wichelhaus and the UCC's Battle of the Forms (2-207).  

Today we have raided his YouTube site for this number on Substantial Performance.  Here is his explanation of the song:

MdeangelisThis is a "Law Lessong" - a law lesson in a song - that I wrote to help students consider the issues regarding substantial performance of a service contract. This song follows a hypothetical where a contractor builds a new dormitory at a college. At some point, the job is "done." But is a construction job ever really "done?" There are always punch list items to be completed. The song and example hopefully allow you to explore what level of performance is acceptable and what constitutes a breach. (In the heating work, the breach is material; in the case of the malfunctioning locks, the breach is likely minor depending on how many locks are involved.) Also, there is the opportunity to distinguish between substantial performance under the contract and the performance of substantial work under the contract.

The melody is based on "The Ship That Never Returned" written by Henry Clay Work in 1865. (This melody may also be recognizable as the tune that the Lettermen used in their 1959 hit song, "Charlie on the MTA"):

The Substantial Performance Song
Words by Mark DeAngelis
Tune: Ship That Never Returned (Work, H.C.)

Refrain:
Did he substantially perform?
Can the college use the dorm,
To keep the students safe and warm?
Look at substance over form,
Minor or material harm?
To determine if he substantially performed.

A builder's bid was won
A job was to be done
To build a brand new college dorm
Excavators dug the land
Subcontractors followed plans 
And soon substantial work they all performed
"We're done!" the builder said,
"Let's put this job to bed"
And the college inspectors came to see.
Though the structure did impress, 
There were problems to address,
Before the college paid the final fee. Refrain

 

The inspectors checked the halls,
The plumbing, lights and walls,
And mostly they were satisfied and glad.
But when they checked the rooms for heat,
The work and standards did not meet, 
The heating and the boiler work were bad.

Besides the heating ills
Leaving students with the chills,
A problem with security was found.
The college was appalled 
When the locks that were installed, 
In the students' rooms were junk and broken down. Refrain x2

[JT]

April 9, 2012 in Music, Teaching | Permalink | Comments (0) | TrackBack (0)

Friday, April 6, 2012

UCC 2-207 Set to Music

MdeangelisHere's another law lessong from Professor Mark DeAngelis of the University of Connecticut's School of Business:

Here is Professor DeAngelis's intro:

This is a "Law Lessong" - a law lesson in a song, that summarizes some of the legal principles applicable under the Uniform Commercial Code for formation of sales contracts. In my experience, the Battle of Forms issue under the UCC seems to give students dreadful problems. The rules under the UCC can be confusing because there is a general rule for non-merchants, a different rule for merchants and then exceptions to the rule. So, you end up with "if this then that but if this then that but if this, this or this, then something else." I think that the song helps!

And here are the lyrics:

This Form is Your Form

Words by M. DeAngelis
Tune: This Land is Your Land

Refrain: This form is your form, that form is my form.
They show a contract for us to perform.
You sent and order, I sent an invoice.
What terms are binding on you and me?

I am a merchant. I am a seller.
You're not a merchant, just a regular fella'.
And my invoice is an acceptance.
But additional terms aren't binding on you and me.

If you're a merchant, our forms do battle.
It isn't merely, idle prattle.
We have a contract, and the invoice terms are added in,
Unless it's an exception, and there are three.

 

This form is your form, that form is my form.
They show a contract for us to perform.
You sent and order, I sent an invoice.
What terms are binding on you and me?

Between merchants, new terms are binding,
Unless you find them, quite surprising.
If unexpected, then material alteration you'll claim,
And the new terms will not bind you and me.

Perhaps your offer expressly stated,
Contract terms could not be annotated,
Or perhaps you previously objected to the invoice terms,
Or you raised your objection, timed reasonably.

This form is your form, that form is my form.
They show a contract for us to perform.
You sent and order, I sent an invoice.
What terms are binding on you and me?

[JT]

April 6, 2012 in Music, Teaching | Permalink | Comments (1) | TrackBack (0)

Wednesday, April 4, 2012

More Contracts Cases Set to Music: Raffles v. Wichelhaus

A few months back, we ran a series of contracts songs YouTube videos created by Professor Richard Craswell.  But the market is not saturated.  Noting that Professor Craswell has no song about the good ship Peerless, Professor Mark DeAngelis, of the University of Connecticut School of Business (pictured), rushed to fill the gap. 

Professor DeAngelis introduces his material as follows: Mdeangelis

This is a "Law Lessong" - a law lesson in a song - that I wrote to help students consider the issues of mistake in contract formation. This song chronicles the story of the case of Raffles v Wichelhaus: establishing the rule of mutual mistake in contract law.

The Bonnie Ships Peerles
By Mark DeAngelis

Sing Ho! For the mighty Peerless as through the waves she steers
A bonnie name for a bonnie ship that surely has no peer.
Can there be another like her cargo-bound for Britain's shore
On her treacherous journey into contract lore?

In America the cotton states were subject to blockade
For the fate of worldwide commerce other plans had to be made
In the colony of India English merchants solace found
Though treacherous be the journey the Cape round

And the halls of British commerce saw negotiations bold
A hundred and a quarter bales of Surat cotton to be sold
And bound to "arrive ex Peerless" from the port of far Bombay
A cargo of great value to convey

Sing Ho! For the mighty Peerless as she plows the briney main
A gallant bark no match for her we'll likely see again
Her name being inked upon the page had given the call for
Her treacherous journey into contract lore?

 

In October's balmy weather it was she first set sail
Her hold was brimmed with goods the merchants contracted for sale
And owing to the faithfulness and skill of her fine crew
Along the docks of Liverpool she drew.

The merchant halls received the word she'd arrived from far Bombay
And the buyer with expectancy made haste unto the quay
As the Peerless spilled her cargo down upon the dock below
No cotton would be found to buyer's woe

Sing Ho! For the mighty Peerless as she rolls upon the seas
With sails aloft and Britain bound she harnesses the breeze
But naught one bale of cotton could be found from aft to fore
On her treacherous journey into contract lore.

But lo and hark the Peerless sits embarking for to sail
Holding precious cotton bound up in a hundred and a quarter bales
A fine Bombay December morn saw her mainsail full unfurled
As she sought to journey halfway 'round the world

The Peerless tossed and pitched so hard as 'round the Cape she flew
When another ship was spied and hailed by her intrepid crew
So, now as peers they plowed the swells bound for opposing shores
Peerless once, now peerless nevermore.

And once again in Liverpool the word passed with all speed
The Peerless had arrived and all with business should take heed
And the Seller stood upon the dock full satisfied and bold
As bail on bail poured from the Peerless' hold.

But alas the buyer ne'er appeared, seller's tender was in vain
For the Buyer'd long since covered other cotton for his skeins
The Seller's suit was filed and for contract breach he claimed
And the case went on to earn them legal fame

Sing Ho! For the mighty Peerless now her voyage it is done
Her seafaring o'er but in the law her legacy's begun.
Though the merchants both invoked her name it left the seller sore
O'er her treacherous journey into contract lore.

Peerless? Nay the gallant ship was equaled by one more
For two ships by name "Peerless" sailed the brine to Britain's shore
On the merchants' fateful term to "arrive exl Peerless" they'd agreed
But no contract formed that either one must heed.

The words were fraught with meaning neither party could foresee
That each had meant a different ship to sail the rolling seas
Like two ships passing in the night, each one to the other blind
Though words agreed, no meeting of their minds.

Sing Ho! For the mighty Peerlesses as through the waves they steer
A bonnie name for bonnie ships that surely have no peers.
Can there be another like them cargo-bound for Britain's shores
On their treacherous journey into contract lore?

It's a treacherous journey into contract lore!

 Professor DeAngelis's other Law Lessongs can be accessed here.

[JT]

April 4, 2012 in Famous Cases, Music, Teaching | Permalink | Comments (0) | TrackBack (0)