February 28, 2013
Jay the Intern, Brought to You By Contracts
On last night's Colbert Report, Stephen announced that he, a company man, was contractually obligated to provide a sponsor integration for Halls Mentho-Lyptus cough drops. He does so by changing the name of his intern Jay to "Halls Mentho-Lyptus with Triple-Soothing Action Presents Jay the Intern."
Ahh, the power of contracts.
February 21, 2013
A Modern Twist on R.R. v. M.H. and Statutory Interpretation?
There's a theory among some of my foodie friends that, when it comes to food, bacon makes everything better. I'm considering a similar theory for teaching Contracts via hypos: when it comes to Contracts hypos, celebrities make everything better. Hypos work. Sure, they "taste" just fine using names like "Buyer," "Client," and "Sub-Contractor," and I use those names most of the time. But using names like "Jason Patric, you know, the guy from Lost Boys and Narc" often makes the hypo better, at least for the few people over 25 who remember those movies. So, in the interest of making hypos better via celebrity a.k.a. bacon, I bring you this story from TMZ (see, you don't actually have to go to sites of ill repute; you can count on me to go to them for you and only bring you the somewhat good, quasi-clean stuff).
As TMZ reports, actor Jason Patric is in a custody dispute with his ex-girlfriend, Danielle Schreiber. Upon their break-up in 2009, Patric allegedly agreed to compensate Schreiber for her troubles via donating his sperm instead of by paying her. Presumably, in exchange for Patric's promised sperm, Schreiber would not sue Patric for support payments. Simple enough (sort of). But wait, there's more! Patric allegedly would donate his sperm to Schreiber only if she also promised not to seek support from him for the child; Schreiber agreed. If this agreement actually was reached, Schreiber must have believed that Patric's sperm was so valuable that she was willing to forgo support payments for herself and for the child that would result. [Insert skepticism here.]
How does this relate to Contracts hypos? It works as a hypo for R.R. v. M.H., which many of us use to teach how a contract can be deemed unenforceable if it violates public policy. In R.R. v. M.H., the court must decide whether to enforce the surrogacy agreement between a fertile father, married to an infertile wife, and the surrogate mother, who also happens to be married, and who was inseminated with the fertile father's donor sperm. I won't go into the case in more detail here; instead, I would like to focus one part of the case has a direct parallel to the Jason Patric dispute.
In R.R. v. M.H., a state statute provided that the husband of a married woman inseminated with donor sperm was treated as the legal father of the child, with all of the associated benefits and obligations that fatherhood carried along with it. The statute was supposed to facilitate the common practice of women being inseminated by a (usually anonymous) sperm donor. Strictly applying the statute to the facts in R.R. v. M.H. would have led to an absurd result. Specifically, it would have meant that the legal father of the child born to the surrogate would have been the surrogate's husband, who had no real interest in the child. The court wisely argued its way around that literal application and ruled differently.
The Patric dispute also involves a law of unintended consequence much like that involved in R.R. v. M.H. A California law states as follows:
"(b) The donor of semen provided to a licensed physician and surgeon or to a licensed sperm bank for use in artificial insemination or in vitro fertilization of a woman other than the donor's wife is treated in law as if he were not the natural father of a child thereby conceived, unless otherwise agreed to in a writing signed by the donor and the woman prior to the conception of the child."
Applying this law to the Patric situation could, like the law in R.R. v. M.H., produce an absurd result. Let's paraphrase the statute with applicable facts in parentheses:
"The donor of semen (Patric) for use in artificial insemenation of a woman (Schreiber) other than the donor's (Patric's) wife (they weren't married) is treated in law as if he (Patric) were not the natural father unless otherwise agreed in a signed writing."
So, even though Patric and Schreiber had been romantically involved, the formalized donation and the couple's unmarried status could negate Patric's claims to custody. It is not clear whether the statute applies and, not being admitted in California, I'd rather not analyze it further. But it always surprises me how what seems like a one-in-a-million kind of case does, in fact, repeat itself. Eventually.
[Heidi R. Anderson]
February 18, 2013
Are Contracts to Blame for Rising Mortality Rates on Downton Abbey?
***SPOILER ALERT: IF YOU HAVE NOT YET FINISHED SEASON 3 AND DO NOT WANT TO KNOW WHAT HAPPENS, READ NO FURTHER***
As those of you who watched Season 3 of Downton Abbey already know, several major characters died unexpectedly this season. Today's New York Times contains an interview with screenwriter Julian Fellowes, who suggests that contracts are to blame for these deaths. Fellowes claims that, while American actors in a television series routinely sign on for five or even seven years, English agents won't agree to more than three.
So, says Fellowes, the actors portraying the late Lady Sybil and the late Matthew Crawley, wanted to go after three seasons, and the screenwriter had no choice but to off them (as melodramatically as possible). Fellowes then explains why death was the only option. If they were merely servants, well, the writers would simply find the characters a new situation in a different household and that would be that. But when you are dealing with members of family, death is the only option if they are unwilling to perform the occasional cameo. Actually, this may show the limits of Mr. Fellowes' imagination. One of my all-time favorite shows, My So-Called Life, had a fairly significant character who never appeared on screen at all, although he was referenced in almost every episode.
In any case, it seems unfair to makes contracts the heavy. In the case of Lady Sybil, clearly English medicine bears part of the blame. And in Matthews case, the whole business could have been avoided with seat belts, air bags, anti-lock brakes and paved roads wide enough to accomodate two motorcars.
Of course, all of this will be different when Netflix brings out the American version of Downton. In that version, viewers will get to vote characters out of the series, and I would off Cora as quickly as possible -- but tastefully, off-stage. We wouldn't want to overtax the actor's abilities. If I were deciding the vote, we'd pretty quickly be left with just the Dowager Countess, Carson and the dog.
February 15, 2013
What Does the Cruise Contract Say?
CNN's Erin Burnett did some intrepid reporting and "went to book a cruise . . . on Carnival so we could look at the contract..." The contract apparently says that, even after 5 days of being stuck on a disabled ship with no electricity or plumbing, "you're out of luck":
Shute v. Carnival Cruise Lines reprise?
[Meredith R. Miller]
February 12, 2013
Update: Maher Takes Aim at Trump's Lawyer
We had previously blogged about the demand letter that Donald Trump sent to Bill Maher. Maher dedicated a segment on his show to the dispute, taking aim at Trump's lawyer. Maher begins: “Donald Trump must learn two things: what a joke is and what a contract is.”
The segment is reminiscent of the Leonard v. Pepsico decision when Judge Wood takes on the task of explaining why the harrier jet commercial was "evidently done in jest." Here, Maher continues the humor in explaining why it was parody when challenged Trump to prove that he (Trump) was not born of an orangutan.
Here's the clip:
[Meredith R. Miller]
February 04, 2013
Did Bill Maher Offer Donald Trump $5mill for Proof that Trump Was Not Born of an Orangutan?
File this under "objective theory" example that even a law professor could not invent.
On national tv Bill Maher challenged Donald Trump to come forward with Trump's birth certificate to prove that Trump was in fact born from a human father (not an orangutan). Apparently Trump provided his birth certificate and then requested that Maher remit the $5 million. The discussion on Fox News: what did Donald Trump reasonably believe? Was this an offer to enter into a unilateral contract? Watch it here:
Who wins: Trump or Maher?
[Meredith R. Miller h/t Steven Crosley]
December 05, 2012
Study Break: Visions of Leonard v. Pepsico on 30 Rock
In a recent episode of 30 Rock ("Mazel Tov, Dummies!"), Liz Lemon (Tina Fey) gets married. Liz attempts to subvert the wedding industrial complex by tying the knot in her gym clothes at City Hall. She fights any desire to make it a "special day," leading her boyfriend/fiance to tell her "it is ok to be a human woman."
Interesting for our purposes: there is a sub-plot in the episode that is reminiscent of Leonard v. Pepsico. It begins at a little past 4 minutes into the episode. A creepy character played by John Hodgman comes to collect a woman (the character Jenna Maroney) that he says he earned by collecting $1,000,0000 Surge points. Surge is a soda and his claim to the money is based on a tv advertisement. The Surge points catalogue entitles Hodgman to the item or its equivalent value. Since it is "illegal to own someone," Jack Donaghy (Alec Baldwin) has to determine Jenna's value (and Jenna is not happy with the assessment of her worth).
Take a study/grading break:
[Meredith R. Miller - h/t 1L Matthew Gray]
November 27, 2012
Two and a Half Men Actor May Have Breached Disparagement Clause [If He Has One]
Angus T. Jones could be in breach of contract for making a shocking declaration via You Tube today that Two and a Half Men is “filth” and that viewers should stop watching, some industry experts say.
Most actors’ deals typically include disparagement clauses that prohibit them from making negative statements about their show in public, but it’s rare for any studio to enforce such a codicil because what can be considered disparagement is so subjective and, as one high-powered source says, “What moron would stab the show that pays him?” Jones, as well as his costars Ashton Kutcher and Jon Cryer, renewed his contract in May for Men‘s current season. He’s earning a reported $300,000 per episode.
Warner Bros. TV would not comment on whether Jones’ deal includes such a boilerplate clause. And even if it did, it seems unlikely WBTV would act on it considering Jones is only 19 and also plays an integral role on the show, which is currently ranked as TV’s third most-watched comedy. Asks an exec at a competing studio, “What are they going to do, fire him?”
[Meredith R. Miller]
November 16, 2012
Seinfeldian Unilateral Contract?
I often am surprised by how many of my current students bring me clips from Seinfeld. Having aired from 1989-1998, the show started when most of my 20-something students were toddlers or, gasp, not even born. I suppose we have syndication to thank for that. This latest clip (embedding disabled) involves a possible unilateral K.
Elaine, the offeror, offers to exchange her bike for a particular type of performance (her own neck-fixing). Kramer potentially accepts via his prompt neck-fixing efforts, which Elaine initially appreciates. Kramer would argue that Elaine's statement was an offer due to the “first person who” language (see Lefkowitz) and the specific requirements Elaine set forth. Elaine could argue (among other things) that there was no offer due to the lack of specificity she used in her so-called offer or the jesting nature of it. Elaine's best argument may be that Kramer did not provide a substantively valid acceptance because he only fixed her neck temporarily—and that was not the performance for which she was bargaining. Kramer then could argue that, via his part performance, he at least has bought himself some time to finish. And so on and so on.
Elaine and Kramer later decided to let their friend Newman resolve their issues through his own type of binding arbitration.
I can't say that I agree with "Judge Newman" on this one. However, I can say that I enjoyed watching it.
[Heidi R. Anderson, h/t to student Phillip Kuye]
October 22, 2012
Erik Gerding on Cunningham: Contracts Outside the Box
Erik Gerding is an Associate Professor at the University of Colorado Law School
Let me start out with a criticism of Larry’s book: it is too much fun. I had a hard time breaking off just a chunk of Contracts in the Real World to write about and found myself spending several hours reading one interesting vignette after another on famous and infamous contracts.
The book will make a wonderful companion text to a traditional contracts casebook. Its value is not just in its engaging account of contract stories or in giving context to chestnut cases, but in providing a very intuitive framework for understanding contract law. The traditional contracts course, perhaps by virtue of having the doctrine of consideration at its heart, can be one of the most confusing in the One-L year. Students are often left to divine the inner structure (or lack thereof) of contract law on their own, likely while cramming for finals. Sometimes the epiphany comes. For many students it does not.
Larry has a real genius for laying out the doctrinal building blocks in a very thoughtful and accessible structure. He groups cases around a rough life cycle of contracts, with chapters devoted to “Getting In: Contract Formation,” to “Facing Limits: Unenforceable Bargains,” to “Paying Up: Remedies.” The layout of the book combined with its lucid writing demystifies contracts.
The layout may at first appear to make this book an ill fit as a companion text to many case books, because many of the cases appear in Contracts in the Real World under a different doctrinal heading than in a particular case book. For example, in the case book I currently use Batsakis v. Demotsis appears in the chapter on “consideration.” Larry places this classic next to cases on unconscionability. I also teach Lucy, Lady Duff Gordon in consideration, while Larry situates it in “Performing: Duties, Modification, Good Faith.”
These differences actually demonstrate a strength of the book. Some disconnect between the organization of a primary case book and a companion text forces students to move beyond a facile understanding of contract law in terms of rigid doctrines. Seeing cases in different contexts and fitting into different doctrinal boxes can help students see that lawyering involves more than memorizing black letter rules and putting issues into the right doctrinal box. Indeed, sometimes different doctrinal boxes can apply to the same problem and lead to the same result (witness rules on past consideration and duress). At other times, the choice of the doctrinal box makes a huge difference (see those same two doctrines). Accomplished students can move from memorizing blackletter law to seeing the possibility of creative lawyering. Larry’s organization – both intuitive and surprising – will help students at both stages.
One final strength of the book is Larry’s choice to include not only court cases but many contemporary contract disputes that never reached the courtroom (such as the dispute between NBC and Conan O’Brien). This brings into the classroom a wider panorama of how lawyers encounter and shape contractual problems in practice. After all, few contracts and few lawyers find their way into a courtroom. Most disputes are resolved in the shadow of law.
I also have a wish list for Larry’s next project (from personal experience, I can tell you how invigorating it is for an author who has just finished a book to be asked “what’s next?’). One of the limitations of the traditional contracts curriculum is how rarely students read and interpret – let alone negotiate or draft – actual contracts. It would be incredibly helpful as a professor to have some of the source contracts behind these stories. Although some of these contracts are already contained in a judicial opinion (Carbolic Smoke Ball) and many will not be public (Conan’s deal with NBC), others might be available with some digging. Having real and full contracts would allow professors to meet many of the items on Professor Collins’ wish list, such as transactional perspectives and drafting exercises. Although some lawyers litigate over failed contractual relationships, many more help parties plan prospectively – including by drafting and negotiating deals. For most attorneys, contracts are not an autopsy subject, to be dissected in a court opinion, but a living thing.
Professor Cunningham’s book provides a joyful reminder of the life in contracts.
[Posted by JT]
September 05, 2012
Money Well Spent on “America’s Favorite Pastime”
As reported here by mlb.com, ESPN and Major League Baseball (MLB) have entered into an eight-year, $5.6 billion agreement, which includes TV and radio rights to MLB programming both in the U.S. and internationally, keeps baseball on the network through 2021 and includes a record-setting increase in annual rights fees (doubled to $700 million from $360 million annually).
And there was much rejoicing.
ESPN's president said, “Baseball remains the national pastime," but the truth is, baseball has long been eclipsed by other sports and then by video games based on other sports and then by video games about killing people, and then by video games about killing zombies. Meanwhile, there was recently talk of MLB becoming a wholly-owned subsidiary of Justin Bieber, Inc. Commissioner Bud Selig commented that "today is a very historic day for baseball." Taken in the context of a sport that is so hung up on statistics that every day is considered "historic" (Wow, Lou, that's the first time that a rookie switch-hitter has struck out looking from both sides of the plate in the same inning -- what a historic day!), Selig's comments seems to be downplaying the deal.
According to the New York Times, ESPN's rival networks, Fox, TBS, NBC and CBS, are still contenders in the baseball airing arena, as ESPN did not manage to grab the division series or league championship series games. There's still some history out there to be made.
[JT and Christina Phillips]
August 03, 2012
Update on Golden Globes Parol Evidence Dispute
In an earlier post, we detailed the dispute between the Hollywood Foreign Press Association (“HFPA”), which votes on and presents the Golden Globe awards, and Dick Clark Productions (“DCP”), which produces the award telecast. One issue in the case involved the parol evidence rule. HFPA argued that DCP could not renew its contract with the NBC television network without first obtaining HFPA's consent. Because the writing did not specify this type of consent right, HFPA wanted to bring in extrinsic evidence regarding its existence. We then updated the story after HFPA lost at the district court level and after Dick Clark's passing. The latest development is related to the appeal. According to the Hollywood Reporter:
A federal judge has agreed to a motion by the HFPA which will allow the press group to file an appeal to their loss at trial with the appeals court prior to the second phase of the trial. As part of the decision by federal Judge Howard Matz, the second phase of the trial will now be put off at least until the appeals court rules on this motion.
Daniel Petrocelli, attorney for the HFPA, said that normally there would be no appeal until the entire trial was concluded, including the second phase which has to do with such issues as what expenses DCP takes out from the show’s production, who has the right to the pre-show and who holds digital rights.
Petrocelli estimates the appeal will take as much as 18 months to reach a judgment. He said that he will actually file the appeal, following a notice of appeal, around October or November.
So, final resolution of the issue will take some time. Expect more updates here when that finally occurs.
[Heidi R. Anderson]
July 26, 2012
Julianna Margulies Plays "The Good Wife," But Is She a Good Client?
Talent management company D/F Management, (D/F) has filed this complaint in the Superior Court of California against actress Julianna Margulies, alleging breach of an oral contract. D/F alleges that in early February, 2009, Margulies agreed that in consideration for D/F’s services to her, she would turn over 10% of all gross revenue earned through Margulies' employment in the entertainment industry.
According to the Complaint and attached lovey-dovey e-mails, the parties got along swimmingly, with D/F assisting Margulies in landing the lead role in The Good Wife and a contract to promote L’Oreal cosmetics. However, in April 2011, Margulies terminated her relationship with D/F and stopped paying the 10% commission. D/F contends that, under industry custom, Margulies remains responsible for ongoing payment of 10% of her gross from industry work that D/F helped her get. D/F seeks damages of no less than $420,000 and declaratory relief entitling D/F to 10% of Margulies earnings on from The Good Wife and L’Oreal going forward.
An interesting aside. The Complaint quotes an e-mail that Margulies allegedly sent to D/F in happier times. As quoted, the e-mail reads as follows:
I'm tryng [sic] to figure out the situation [with my entertainment attorney] who I love, but I've been paying him a lot of money my whole career, he gets 5% of everything I do, but really only works once every blue moon for me, and I am finding that actors don't do that with lawyers anymore, they all do flat rates. With the 3rd year coming up, (i'm [sic] talking about the syndication deal etc....) it feels like too much money going out for such minimal work and I just want to see what other clients are doing . . . .
As to this, we have two comments. First, it looks like Margulies might soon be getting her money's worth out of her attorney. Second, who puts "sic" in a quoted e-mail?!? And why put a "sic" after "tryng" and "i'm" while ignoring, e.g., all of the comma splices, not to mention the questionable choice of "who" over "whom" in "who I love"? If you "sic" some things but not others, aren't you endorsing all mistakes that escaped your pedantry?
The really surprising thing about all this is that there is no written contract. D/F refers to an “oral management agreement” that incorporated the “industry custom” of a 10% fee to D/F. So, while we do not claim any expertise in California law, general contracts principles suggest that if this case proceeds, there will need to be factual determinations as to whether there is indeed such a custom that continues after the termination of the relationship and whether Margulies knew or should have known of it.
In addition, there would seem to be a Statute of Frauds issue here, since on D/F's view, the contract may not be performable within a year if, for example, Margulies entered into multi-year agreements with either CBS or L'Oreal.
Stay tuned to see how Margulies answers.
[Christina Phillips & JT]
July 25, 2012
Cast Members of ABC's Modern Family Claim that Their Contracts Are Invalid under "7 Year Rule."
Yesterday, the cast of ABC's hit sitcom, Modern Family, filed a Complaint for Declaratory Relief against the show's production company, Twentieth Century Fox. (Ed O'Neill, previously of Married...with Children fame, who is compensated differently than his co-stars, has not joined the lawsuit but plans to do so, according to The Hollywood Reporter). The stars apparently were negotiating pay increases for future seasons 4 through 9 but were not satisfied with the offers they were receiving. Twentieth Century Fox (and ABC, the network on which the show airs) reportedly offered to increase each cast member's per-episode compensation from around $65,000 to $200,000 for the next few years. As negotiations broke down, the stars filed suit.
The named plaintiffs (including Sofia Vergara, Jesse Tyler Ferguson, Eric Stonestreet, Julie Bowen and Ty Burrell) are relying on an interesting legal strategy. They claim that their employement agreements are "personal service contracts" that are "illegal and void under California law" because they violate the "Seven-Year Rule." The Seven-Year Rule is codified in California's Labor Code section 2855(a), copied below:
"Except as otherwise provided in subdivision (b), a contract to render personal service, other than a contract of apprenticeship as provided in Chapter 4 (commencing with Section 3070), may not be enforced against the employee beyond seven years from the commencement of service under it. Any contract, otherwise valid, to perform or render service of a special, unique, unusual, extraordinary, or intellectual character, which gives it peculiar value and the loss of which cannot be reasonably or adequately compensated in damages in an action at law, may nevertheless be enforced against the person contracting to render the service, for a term not to exceed seven years from the commencement of service under it. If the employee voluntarily continues to serve under it beyond that time, the contract may be referred to as affording a presumptive measure of the compensation."
The complaint itself does not quote from the code section. It merely cites the code section and adds this parenthetical: "(personal service contracts are barred from having terms beyond seven years)." The complaint also does not explain how the law applies to a contract of a shorter duration that provides the employer (Twentieth Century Fox) with the option to extend it beyond seven years. Without citing any cases, it's hard to tell how this law would be interpreted to apply to the cast employment agreements. However, I am not a California lawyer so I should not go further without doing more research. Anyone know anything about this law?
If I never look into it more deeply, I at least hope to use this case as an example of the importance of researching individual state law rather than thinking, "All I really need to know I learned in Contracts class."
[Heidi R. Anderson]
July 20, 2012
Ashton Kutcher and Reliance Damages
In his first appearance on ContractsProf blog, Ashton Kutcher was noted for his replacement of Charlie Sheen, famous for violating an alleged morals clause in his contract with the producers of the CBS television series, Two-and-a-Half Men. In this appearance, his company possibly provides a good example of a party seeking reliance damages.
Kutcher's company, Katalyst Media, reportedly had a contract with the California DMV (yes, that DMV) to provide access and content for a reality show about "the variously humorous, emotional, dramatic, moving, humanizing and entertaining situations that arise [at the DMV] on a daily basis." According to the complaint, the DMV later attempted to cancel the arrangement. In addition to other claims, Kutcher claims that the attempted contract cancellation came after his company had spent money in reliance. Specifically, the complaintstates:
"In direct reliance upon DMV's promises and commitments...Plaintiffs entered into an agreement with cable television station TruTV....Also in reliance on DMV's promises and commitments...Plaintiffs spent literally hundreds of thousands of dollars in pre-production for the Series, including with respect to casting, hiring of personnel, preparing budgets, negotiating contracts, and other pre-production activities."
The case is particularly interesting because the facts somewhat parallel those in the case I use to teach reliance, Hollywood Fantasy Corp. v. Gabor. In Gabor, the organizer of fantasy acting camps sued Zsa Zsa Gabor for backing out of one of the camps and allegedly causing all sorts of damages (including, perhaps, the bankrupting of the entire company). The plaintiff, Leonard Saffir, also alleged that he lost anticipated profits from a "bloopers" show he was planning to sell to a television network based on outtakes from the fantasy camps. Although Saffir's damages were too uncertain to recover under a traditional expectation-based lost profits theory, he was able to recoup his expenses (such as brochures, advertisting, etc.) incurred in reliance on Ms. Gabor's promise to appear.
I suppose the modern day equivalent to a bloopers show would be some current reality TV shows, including Kutcher's own prior series, Punk'd. So, from now on, whenever I run across an Ashton Kutcher re-run, I'll automatically think of Leonard Saffir--and reliance.
[Heidi R. Anderson]
July 12, 2012
Suit over USA Network's "Royal Pains"
Forest Park Pictures alleges that it created what the industry calls a "series treatment" for a television show called “Housecall,” featuring a doctor who, after being expelled from the medical community for treating patients who could not pay, moved to Malibu, California, and became a “concierge” doctor to the rich and famous. Forest Park presenting this material to USA Network (“USA”) both in writing and in a face-to-face "pitch." Below is the opening scene of Robert Altman's "The Player" illustrating what a pitch is like:
Forest Park alleges an implied agreement by USA to pay reasonable compensation if its ideas were used. Although Forest Park and USA exchanged further communications, discussions ultimately fell off with no formal agreement to produce the show.
About four years later, USA produced and aired “Royal Pains,” a television show suspciously simlar to "Housecall." Forest Park then sued USA for breach of the implied agreement. The district court granted USA’s motion to dismiss on grounds that the Copyright Act preempted the claim and that the contract was too vague to be enforced. On appeal, the Second Circuit Court of Appeals vacated and remanded.
Section 301 of the Copyright Act expressly preempts a state law claim only if (1)” the work at issue comes within the subject matter of copyright and (2) the right asserted is equivalent to any of the exclusive rights within the general scope of copyright.” However, if the state law claim includes an element that supplants or supplements the elements of a copyright infringement claim, there is no preemption. In this case, the Second Circuit found that Forest Park's claim was not preempted because it alleged that USA had promised to pay Forest Park for the use of its ideas, an element that made its claim "qualitatively different from a suit to vindicate a right included inthe Copyright Act." In addition, a copyright grants the owner exclusive rights against the world, whereas a breach of contract claim provides no exclusive rights and asserts rights only against the contractual counterparty.
The Second Circuit then moved on to consider whether Forest Park had alleged a breach of an implied-in-fact contract. California has long recognized that an implied-in-fact contract may be created where the plaintiff submits an idea that the defendant subsequently uses without compensating the plaintiff. Although USA argued that even if the parties were part of an implied-in-fact agreement, the agreement could not be enforced because it lacked a definite price term. However, California courts allow the enforcement of contracts that lack exact price terms as long as the parties’ intentions can be ascertained. Taking into account the industry custom of pitching an idea for payment, the court remanded back to the District Court, giving Forest Park a chance to prove that such an industry standard price exists and that both parties agreed to it.
We learn from Wikipedia that "Royal Pains" was renewed for its fourth season last September.
[JT and Chirstina Phillips]
June 15, 2012
Update on Golden Globes Contract Dispute
I previously blogged about the parol evidence rule and interpretation issues at the heart of a dispute between Dick Clark Productions ("DCP") and the Hollywood Foreign Press Association ("HFPA") over broadcast rights for the Golden Globes. I now have two updates.
First, the District Court has ruled in favor of DCP in a 89-page opinion posted here by the Hollywood Reporter. Pages 65-78 contain the arguments and holdings regarding the "plain meaning" of the modified contract and the use of extrinsic evidence (citing the commonly-used PG&E case). Pages 79-81 review HFPA's argument that there was no consideration for the modified contract. The opinion even contains a helpful discussion of mistake at pages 81-83.
The second update is that Dick Clark Productions reportedly is up for sale (less than two months after Dick Clark's passing). It would be interesting to see the DCP-HFPA contract provisions regarding assignment and change of control. Perhaps there will be a post-sale lawsuit as well.
Ultimately, I predict that this case appears in Contracts casebooks very soon. The combination of issues, the high profile nature of the dispute, and the short contractual provision itself, all make it a great candidate. As one lawyer said to the LA Times,"So much litigation over 12 words...."
Stay tuned (pun intended).
[Heidi R. Anderson]
June 14, 2012
The Return of the Big Bang Theory
The Big Bang Theory, CBS's critical and commercial success, also is a Contracts professor's dream. This is due to the show's frequent references to "The Roommate Agreement" between the two main characters, Sheldon and Leonard. I previously blogged about using the show to illustrate anticipatory repudiation and contractual interpretation. I am now back with another clip, this time to illustrate duress and possible lack of consideration for an agreement modification. In this latest clip, Sheldon gets Leonard to agree to modify the roommate agreement by threatening to notify Leonard's girlfriend's parents about their relationship. The threat has meaning because the girlfriend, Priya, believes her parents in India would not approve of her relationship with the non-Indian Leonard. I'm not sure, however, if the threat is "wrongful" in the traditional duress scenario. The clip also features two key Star Trek references for all the Trekkies out there (someone should do a study, illustrated via Venn diagram, on the overlap between the "law professor" and "Trekkie" categories--I predict significant overlap). I hope to use the clip as a supplement the traditional duress cases of Loral and Totem Marine. Given that Sheldon appears not to give Leonard anything in exchange for the modification, it also could be used in the pre-existing legal duty rule context.
[Heidi R. Anderson]
June 11, 2012
Television Without Commercials?!? Say It Ain't So, Dish
In its Complaint filed against Dish Network (“Dish”), Fox Broadcasting Company (“Fox”) (along with ABC, NBC, and CBS, all separately) alleged Dish’s new AutoHop service, which allows customers to skip television ads, violates the license granted to Dish for video-on-demand service to consumers. According to Fox, the license to Dish was granted under certain conditions, apparently including provisions that prohibited any form of rebroadcast of Fox programming that would enable viewers to skip commercials.
In case the Court has been living in cave for the past seventy years or so, Fox points out that commercial advertising is vital to broadcast television. If it weren't for its advertisers, Fox would be unable to bring us the hit shows without which life would not be worth living.
Nonetheless, Dish has recently launched its own video-on-demand service called PrimeTime Anytime that is available to top-tier Dish subscribers who lease the Hopper set top box from Dish. PrimeTime Anytime makes available to subscribers the entire primetime broadcast schedule for all four major networks every night and commercial free. According to Fox’s Complaint, “unlike traditional DVR, the Primetime service was specifically and deliberately designed by Dish so that Dish can record, and/or encourage and facilitate unauthorized recording of hundreds of hours of copyrighted television programs and distribute those copies in a revised format so they can be viewed commercial-free.”
In addition to the DVR-like aspects of Dish's new service, Dish will also redistribute and stream Fox’s programming over the Internet. Fox claims that this too constitutes a violation of copyright law and Dish’s agreements with Fox. Fox points out that this aspect of Dish's new services also constitutes unlawful competition with iTunes and Amazon who must pay for the right to offer commercial-free versions of Fox’s programming.
Further information is available through this report on hollywoodreporter.com.
[Christina Phillips & JT]
May 24, 2012
"Hot Dogs Don't Have Contracts...."
Yup, an ad for internet service:
[Meredith R. Miller]