ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

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, 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, 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. 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."


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.


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.



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.


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


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.)

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


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?


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.


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

Friday, January 13, 2012

Professor Craswell's Song for Rose (Sherwood v. Walker)

And here it is: the last in our series of links to Professor Richard Craswell's series of first-year contracts cases put to song.   Previous installments in the series from Professor Craswell have included his takes on Frigaliment Lumley, Wood v. Lady Duff Gordon, Alaska Packers, Parker v. Twentieth Century Fox, and Wartzman v. Hightower Productions.

We have blogged about Sherwood v. Walker before, here, here, and here.  Professor Craswell provides the following summary of the case:

Boy meets cow. Boy loses cow. Boy files an action in replevin. And now Plymouth (Michigan) takes its rightful place beside Verona (Italy) and the upper West Side (Manhattan) as the home of legendary star-crossed lovers!

Oh, all right. The actual facts of the case are more prosaic. Theodore Sherwood, who wanted to buy the cow, was the 47-year-old PRESIDENT of the local bank, who would never have considered hopping a freight train out of town. Though his motive in purchasing the cow is obscure, there was of course no evidence that his interest in the cow was anything other than financial. And the eventual outcome of the case was far happier than that portrayed here, for the pedigreed cow in question ("Rose the Second of Aberlone") went on to have at least five additional calves, whose registration papers each listed none other than Theodore Sherwood as the breeder. Still, no Hollywood or Nashville producer would have settled for the facts described above. Make the banker a penniless but romantic youth; change his interest in the cow to something more than "just good friends"; then tack on an implausible but heart-wrenching ending (and label the result "inspired by a true story") ... well, do all that, and you might just have the next big musical hit!

The rather long list of poems inspired by Rose of Aberlone begins famously wiith Brainerd Currie, "Aberlone, Rose of (Being an entry for an index)," first published in the Harvard Law School Record, Mar. 4, 1954, p. 3, and stiill widely available on various web sites. See also Alan Garfield, "Basic Assumption: A Poem Based on Sherwood v Walker," 57 SMU L. Rev. 137 (2004); and the various verses that can be found (along with much background on the case itself) in Norman Otto Stockmeyer, "To Err is Human, To Moo Bovine: The Rose of Aberlone Story," 24 T.M. Cooley L Rev 491 (2007).

 The whole series can be found here,

Thanks to Professor Craswell for sharing these songs and YouTube creations with us!


January 13, 2012 in Contract Profs, Famous Cases, Music, Teaching | Permalink | Comments (1) | TrackBack (0)

Thursday, January 12, 2012

A Song for Wartzman v Hightower Productions, Ltd

We continue our series of postings of Professor Richard Craswell's contracts songs with this number about "Woody Hightower" and his pole-sitting gambit.  Other installments in the series from Professor Craswell have included his takes on FrigalimentLumley, Wood v. Lady Duff Gordon, Alaska Packers, and Parker v. Twentieth Century Fox.

Here is Professor Craswell's summary of the case:

Hightower Productions intended to employ a singer-entertainer who would live in a specially constructed mobile flagpole perch and set a new world record for flagpole sitting. The young man selected to perform this feat would be known as "Woody Hightower," and the venture was to be publicized by having him make appearances from his perch at concerts, shopping centers and the like.

Unfortunately, Hightower Productions' lawyer (Mr Wartzman) failed to prepare the paperwork needed for the company to sell stock legally to investors. As a result, no further money could be raised (nor could "Woody" be exhibited across state lines) and the project was abandoned. Unable to prove how much its flagpole-sitting venture might have made if it had gone forward, Hightower Productions instead sued its lawyer for some $170,000 in out-of-pocket expenses, known in contract law as reliance damages.



The whole venture seems a bit daft.  In order to defeat the record set by St. Simeon Stylites, "Woody" would have had to sit atop his pole for 37 years.  "What?" you say.  "That's not what my Guinness Book of World Records says!"  Well, Mr. Guinness, meet Mr. Tennyson.  Or, if you prefer a more modern take on such religious exercises, consider Joshua Mehigan.


January 12, 2012 in Contract Profs, Famous Cases, Music, Teaching | Permalink | Comments (0) | TrackBack (0)

Friday, January 6, 2012

Professor Craswell Takes on Lady Duff

We have already presented Stanford Law's Richard Craswell's takes on Frigaliment and Lumley.  Today, we offer his song about Wood v. Lady Duff Gordon, a case we have previously mentioned, for example here, here, here, here, and here.

Here is Professor Craswell's summary:

Born Lucy Sutherland, she married a Baronet and became one of the first celebrity fashion designers, enjoying success in the UK and France. Her American ventures were less successful, though, especially the effort to sell her designs through Sears and other mass retailers. Among other problems, she had already granted her American marketing rights -- including the right to half of the profits on each sale -- to a publicity agent, Otis Wood.

When Mr Wood sued for the unpaid royalties, Lady Duff-Gordon defended on the ground that Wood had not explicitly PROMISED he would do anything in return, so Duff-Gordon's promise to Wood was unenforceable for lack of "consideration." New York's highest court disagreed, in a famous opinion by Judge Benjamin Cardozo,

For a discussion of the case's historical context, see Victor P. Goldberg, "Reading Wood v Lucy, Lady Duff-Gordon with Help from the Kewpie Dolls," in his book, Framing Contract Law: An Economic Perspective 43 (2006). Other useful discussions can be found in the symposium introduced by James J. Fishman, "The Enduring Legacy of Wood v Lucy, Lady Duff-Gordon," 28 Pace L. Rev. 161 (2008); and in Mary Joe Frug, "Re-Reading Contracts: A Feminist Analysis of a Casebook, 34 American U. L. Rev. 1065 (1985).

And here's the video:



January 6, 2012 in Contract Profs, Famous Cases, Music, Recent Scholarship, Teaching | Permalink | Comments (1) | TrackBack (0)

Thursday, January 5, 2012

Craswell on Lumley v. Wagner

Here is today's installment of the first-year course set to music by Richard Craswell.  This time it's Lumley v. Wagner, Lumley v. Gye, a case we have not spoken about previously on the blog.  So here is Professor Craswell's summary of the case:

In 1852, soprano Johanna Wagner (the niece of the famous composer) agreed to perform for three months in London at Her Majesty's Theatre, operated by Benjamin Lumley. The contract, which described her as "cantatrice of the court of His Majesty the King of Prussia," specified that Wagner could not perform at any other London theatre during that time. However, after Lumley failed to pay Wagner the advance that her contract required, Wagner accepted a better-paying engagement at Frederick Gye's Royal Italian Opera Theatre in Covent Garden, London. ¶ Courts then (as now) were reluctant to issue injunctions compelling artistic performances, in part because a coerced performance might not be very good. Lord St Leonard, England's Lord Chancellor, found a solution by ordering Wagner NOT to sing at any OTHER theater during those months. ¶ For more on the history and context of this case, see Lea S. VanderVelde, "The Gendered Origins of the Lumley Doctrine: Binding Men's Consciences and Women's Fidelity," 101 Yale L.J. 775 (1992).



We note that the case is the subject of a recent law article, A New Tortious Interference with Contractual Relations: Gender and Erotic Triangles in Lumley v. Gye, by  Sarah Lynnda Swan.


January 5, 2012 in Famous Cases, Music, Recent Scholarship, Teaching | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 4, 2012

Richard Craswell on Frigaliment

Stanford Law's Richard Craswell has shared with us a link to his collection of contracts YouTube videos.  But a pig this good you eat one leg at a time.  So for now, we just include his song about Frigaliment, Judge Friendly's great chicken coup.  It's not like we haven't written about this case before, for example, here, here, here, here and here

But we never tire of new approaches to the case.  Here's Richard Craswell's:


January 4, 2012 in Contract Profs, Famous Cases, Music, Teaching | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 29, 2011

Don't Buy This: 'Tis the Cyber Season of Reverse Psychology

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 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]

November 29, 2011 in E-commerce, In the News, Miscellaneous, Music, Quotes | Permalink | Comments (1) | TrackBack (0)

Wednesday, November 9, 2011

Relational contracts and new business models

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).

[Nancy Kim]

November 9, 2011 in E-commerce, Miscellaneous, Music, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Monday, October 10, 2011

Some Thoughts on Steve Jobs, Apple and Contracts

Steve Jobs made quite an impact on the world, rethinking the way people use technology and introducing beautifully designed, innovative products. Because this is a contracts blog, I want to discuss the interesting way his company, Apple, uses contracts in its business. Before iTunes, most music was sold to consumers on CDs. Apple is not the first or only company to license rather than sell digital music, but it is the most popular. Because of the enormous popularity of the iPod and iTunes, Apple made it acceptable to license rather than sell music - a concept that at one time seemed strange and somewhat outrageous. The way Apple uses contracts is closely tied to the nature of its innovative products and services (which meld the tangible and the digital), the way they are delivered to the customer, and Apple’s business model. Apple markets itself as more than a purveyor of technology products. Its customers don’t buy a product, they enter into a relationship. Apple reminds customers that they have a relationship, not a one time transaction, and they remind them via contracts. Apple has its customers click each time they purchase a song and each time they download an updated version of iTunes. It's mass consumer relational contracting. (Other companies may do this, too, but I can't think of one offhand that does it the way Apple does). Apple also closes the gap between offline and online contracting. When I bought my iPad not long ago, after I had paid for it, the salesperson (aka the “Genius”) had me click “I agree” to the terms of an agreement on my new iPad before he would hand it over. It made me wonder, will we see more rolling clickwraps? Will clickwraps replace paper contracts in the mass consumer setting? As products become more digital than tangible, will we see more licenses and fewer sales? (I think the answer is yes). As products incorporate more software than hardware, will they no longer be considered “goods”? What types of innovative contracting forms might we expect to confront in the future?


October 10, 2011 in Current Affairs, E-commerce, Music, Web/Tech | Permalink | Comments (0) | TrackBack (0)