Monday, October 22, 2012
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]
Wednesday, September 5, 2012
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]
Friday, August 3, 2012
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]
Thursday, July 26, 2012
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]
Wednesday, July 25, 2012
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]
Friday, July 20, 2012
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]
Thursday, July 12, 2012
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]
Friday, June 15, 2012
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]
Thursday, June 14, 2012
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]
Monday, June 11, 2012
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]
Thursday, May 24, 2012
Thursday, April 12, 2012
Keith Olbermann (left) and Al Gore's (right) Current TV have filed suit against each other in Los Angeles Superior Court. Olbermann claims Current TV violated his contract and owes him up to $70 million in unpaid compensation. Olbermann’s complaint specifies that he was publically terminated without cause, and he is suing for breach of contract, sabotage and disparagement. Current TV’s cross-complaint seeks a declaratory judgment on the grounds that it acted within its contractual rights when it terminated Olbermann, as well as a determination that it no longer has to pay Olbermann, having already paid him handsomely while receiving a “pauper’s performance” in return. As reported by FoxNews.com, Current TV claims that Olbermann was too often an absentee anchor and simply did not live up to the terms of his contract, especially in terms of ratings. Yet, Olbermann alleges that the subpar broadcast facilities at Current TV made it difficult for him to produce good ratings.
As chronicled in the Santa Francisco Examiner, this is just the latest episode in the picaresque story of broadcaster Olbermann. He anchored for ESPN until his unauthorized 1997 appearance on the “Daily Show” during which he referred to Bristol, CN, ESPN’s headquarters, as a “godforsaken place.” In the words of ESPN spokesman, Mike Soltys, when Olbermann left he did not merely burn his bridges; he napalmed them. From there, Olbermann went to MSNBC, but by 1998, he was so sick of reporting on the Monica Lewinsky scandal (who can blame him?), he left MSNBC, and joined Fox Sports. He soon returned to MSNBC to host “Countdown with Keith Olbermann.” As we have previously reported here, MSNBC agreed to pay him $7.5 million a year through the 2012 presidential election. However, as we reported here, Olbermann called it quits in the middle of that contract—while on the air--for reasons that remain unclear.
Which brings us to the current lawsuit. In a statement reported by businessweek.com, Current TV spokeswoman, Laura Nelson characterized the lawsuit as follows: ‘when the law is on your side, you argue the law. When the facts are on your side, you argue the facts. When neither the law nor the facts are on your side, you pound the table. . . It is well established that over his professional career, Mr. Olbermann has specialized in pounding the table.” On April 3, in an appearance on CBS’s “Late Show,” Olbermann said, “I screwed up really big on this.” “It’s my fault it didn’t succeed in the sense that I didn’t think the whole thing through.” Current TV quoted these comments in the first paragraph of its cross-complaint.
[JT & Christina Phillips]
Monday, April 2, 2012
As reported in The New York Times, the discovery of a lost episode of Star Trek has sparked a, so far, non-litigious debate over CBS’s decision to enforce its right in the material and to prohibit the online airing of an amateur production based on the episode’s script.
Norman Spinrad wrote the episode, He Walked Among Us,” in 1967 after the show’s producers approached him with a four-day deadline and a box of no-doze. The producers thought the episode might provide an opportunity for comedian Milton Berle to work a dramatic role. Tragically, the episode never aired, and Spinrad’s script ended up getting donated to the archives at Cal State Fullerton, where it sat unnoticed for decades.
Years later, Spinrad was approached at a convention by a Trekkie (depicted in the image above) who asked Spinrad to sign a copy of “He Walked Among Us.” Spinrad later teamed up with James Cawley to discuss the possibility of finally producing “He Walked Among Us.” Cawley is senior executive producer for “Phase II,” a web-based production studio that uses unpaid amateur actors to act out Trekkies’ favorite episodes. In these productions, Cawley plays Captain Kirk, which is a bit like putting together a Shakespeare company so that you can play Hamlet. But still . . . .
CBS sent Cawley an email, asking him to cease production of the episode. CBS has been consistently buying merchandising, television and online rights to Star Trek. Cawley and Spinrad apparently have good relations with CBS and want to keep things that way. As Spinrad puts it on his website,
I and CBS have agreed to resolve our disputes concerning the ownership of the Work; as part of the settlement between the Parties, the Parties have agree that there will be no further comment; and CBS is considering opportunities to offer licensed copies of the Work.
Because of the above, I can no longer comment on the He Walked Among Us screenplay myself.
It is uncertain exactly why CBS has allowed Phase II to produce other unaired Trek projects but has decided to stonewall this project. Here are the leading theories:
- The subject matter of “He Walked Among Us” has been mined so thoroughly in other Star Trek episodes, CBS is concerned that further probing in this area could open up a rift in the time/space continuum;
- Due to a holodeck malfunction, the person calling himself Norman Spinrad is really Kirk’s arch-nemesis, Khan, returned to destroy the good name of the Star Trek franchise;
- After consulting with its resident half-Betazoid advisor, CBS concluded that there was something not quite right about the episode – some sort of deception may be involved, or not;
- William Shatner was insisting on playing the Milton Berle part and that the part include a fist-fight;
- CBS producers thought the episode's lower decks discussion of why Star Fleet could mandate health care coverage but not require that all replicators be programmed to synthesize broccoli when receiving requests for "junk food" was too dated; and
- A crucial element in the plot is the possibility of traveling at speeds in excess of light speed, and now that the faster-than-light neutrinos theory has been debunked, CBS thinks viewers will be unable to suspend disbelief
[JT and Justin Berggren]
Monday, March 26, 2012
I use releases to introduce the concept of consideration in part because most students have signed one somewhat recently. The casebook I use features Reed v. UND (see part IV of the opinion), previously blogged about here, in which a charity race participant waives his right to sue for negligence on behalf of the race organizers. A student tipped me off to the latest trend in such activity releases at the high school level--the waiver of the right to sue for loss of enjoyment in life. This story provides great examples of typical contractual language, parents' understandings of the language, and tort-based explanations for the language.
[H.R. Anderson, hat tip to student Terri Parker]
Saturday, March 10, 2012
Anyone searching for an amusing example of anticipatory repudiation (or almost any other Contracts topic) need look no further than CBS sitcom, The Big Bang Theory. The show prominently features a "roommate agreement" between the two main characters, Sheldon and Leonard, physicists who struggle a bit in the romance department. I asked students to view this clip and then fill in the blanks in the following sentence: ________________ does not have to _____________ because ______________ repudiated when he ________________. It was a bit too easy, of course, but it did seem to help them remember the concept.
[Heidi R. Anderson]
Friday, February 17, 2012
In a little-noticed incident, since most people were watching Downton Abbey that night, a British rapper, M.I.A. (pictured left) performing during this year’s NFL Super Bowl halftime show, looked into the camera, uttered an expletive, and flipped the bird to millions of viewers around the world. As a result, in addition to millions of people knowing of her existence, she may be in breach of contract with the NFL.
As reported by Yahoo.com Sports, NFL spokesman, Greg Aiello, maintains that when the league hires the entertainment for the show, the artists are required to sign an agreement containing safeguards concerning artists’ conduct. TMZ.com reports that the agreement between M.I.A. and the NFL contained a clause indemnifying the NFL against any fines that may be imposed by the Federal Communications Commission (FCC) as a result of her behavior during the halftime show. TMZ also reported that the NFL agreed to indemnify NBC against any such fines, because the NFL is responsible for the halftime show’s content. M.I.A. thus may be contractually obligated to pay any fines that the FCC chooses to impose on NBC and the NFL. The news reports do not make clear what other remedies the NFL might have against M.I.A., since the indemnification clause would seem to cover any harms the NFL could suffer as a result of M.I.A.’s conduct.
The FCC sets out the relevant regulatory scheme as follows:
Obscene material is not protected by the First Amendment and cannot be broadcast at any time. To be obscene, the material must have all of the following three characteristics:
- an average person, applying contemporary community standards, must find that the material, as a whole, appeals to the prurient interest;
- the material must depict or describe, in a patently offensive way, sexual conduct specifically defined by applicable law; and
- the material, taken as a whole, must lack serious literary, artistic, political, or scientific value.
Indecent material is protected by the First Amendment, so its broadcast cannot constitutionally be prohibited at all times. However, the courts have upheld Congress' prohibition of the broadcast of indecent material during times of the day in which there is a reasonable risk that children may be in the audience, which the Commission has determined to be between the hours of 6 a.m. and 10 p.m. Indecent programming is defined as “language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities.” Broadcasts that fall within this definition and are aired between 6 a.m. and 10 p.m. may be subject to enforcement action by the FCC.
Profane material also is protected by the First Amendment, so its broadcast cannot be outlawed entirely. The Commission has defined such program matter to include language that is both “so grossly offensive to members of the public who actually hear it as to amount to a nuisance” and is sexual or excretory in nature or derived from such terms. Such material may be the subject of possible Commission enforcement action if it is broadcast within the same time period applicable to indecent programming: between 6 a.m. and 10 p.m.
So, FCC fines may result if the FCC determines that M.I.A.'s conduct was either obscene, indecent or profane, as the halftime show aired before 10 PM.
[JT and Christina Phillips]
Tuesday, February 14, 2012
We have recently discovered a wonderful TNT-network series, Men of a Certain Age. Unfortunately, the series was cancelled after its second season. Ray Romano, pictured at left, a co-creator of the show played one of the three main characters. His character, Joe, is a nice guy with a serious gambling problem, so here we show the actual Ray Romano gambling. How's that for irony?!?
In a ContractsProf Blog exclusive, we have discovered what did the show in. It was not the ratings, and it was not the demographic challenges of marketing a show that is not about 20-somethings. Nor was it because of the fact that the show illustrates that middle-aged people do have sex, enjoy it, and can be pretty good at it. Nope. The show's demise was clearly a product of the improbable plot twists involving Andre Braugher's character Owen and his relationship to his father's car dealership.
Owen works at his father's Chevy dealership. He anticipates that he will one day succeed his father as owner and manager, but he never meets his father's expectations. Towards the end of season 1, Owen's father decides to step down, but he appoints a hot-shot salesman to run the operations, and Owen retains his status as a regular salesman. After putting up with the humiliation for a few weeks, Owen bolts to the rival Chevy dealership, where he prospers. His father, duly chastened, offers Owen the dealership, and Owen returns.
So, I don't know for certain that car salesmen have non-compete agreements as a standard element of their contracts, but they certainly ought to, as the show illustrates. A car salesman is not like an attorney in terms of the law's regard for their relationship with their clientele, but the show does indicate that long-term relationships exist with repeat buyers. Accordingly, it would not be a wise business practice for any car dealer to permit salesmen to bolt to a rival and to take their client-base with them. But Men of a Certain Age makes no mention of a non-compete agreement.
And that's what did them in.
You read it here first.
Monday, February 13, 2012
At right, we have an image of housewifery form the 19th Century. Times have changed. The Huffington Post reports that the Bravo network may soon replace Real Housewives of Beverly Hills personality Taylor Armstrong, who is being sued by MyMedicalRecords.com for $1.5 million in a breach of contract lawsuit. The suit originally named both Taylor and her husband, Russell Armstrong, as defendants. However, in August 2011 after suit was brought, Russell committed suicide, leaving Taylor to answer the lawsuit alone.
According to HuffPo, Russell was the largest shareholder of MyMedicalRecords.com, which at the time was a privately held company. The company provides “secure Personal Health Records and electronic safe deposit storage solutions.” The company discovered that Russell was misappropriating investor money and also diverting shares of the company. The company removed Russell from the board, and he signed a $250,000 settlement agreement. The settlement required that Russell identify parties to whom he had sold shares of MMRGlobal. When he failed to do so, the $1.5 million dollar lawsuit followed.
Money is not the only thing at stake for Taylor. Co-star Camille Grammer, ex-wife of Kelsey Grammer, told The Huffington Post that chances are good that Taylor will not be asked back for Season 3 of Real Housewives of Beverly Hills. According to Grammer, Bravo executives “are going to start casting, looking for new housewives.” HuffPo speculates that Bravo executives could be deposed in the lawsuit, as MMRGlobal’s attorneys seek information about Taylor’s income and how it might have been disposed of.
[JT and Janelle Thompson]
Monday, February 6, 2012
Some may find this clip from The Big Bang Theory useful in illustrating some contractual interpretation maxims, including "interpret against the drafter" and "read the contract in a way that gives meaning to the whole." It also addresses the general concept of ambiguity. In the clip, Sheldon accuses his roommate and fellow physicist, Leonard, of violating two terms of their "roommate agreement." The first involves Leonard's denial of access to the bathroom in the event of an "emergency" experienced by Sheldon. Leonard's girlfriend, Priya, rather convincingly argues that the term "emergency" is ambiguous and that it should be interpreted against Sheldon, the agreement's drafter. The second allegedly violated term involves unauthorized use of the shower by more than one person. Priya navigates around this term by arguing that another term of the agreement regarding hot water conservation trumps the "one person per shower" provision, perhaps illustrating the maxim of "specific beats general." (Note: The clip appears authorized by CBS, WB, et. al, as far as I can tell, but I make no warranties on that or, well, anything else I write).
[H.R. Anderson, h/t to student, Ellie Holub]
Monday, January 23, 2012
At the end of Season 4 of Big Love, protagonist Bill Henrickson wins election to the state senate and decides that this is the time to reveal his plural marriage (depicted at right). What could possibly go wrong? Tune in next season to find out.
And so we have, now that Season 5 is out on Netflix, and part of what goes wrong relates to contracts. First, Bill's third wife, Margene, gets fired from her job, hawking jewelry on a shopping network. When she inquires about her severance, she is told that she is not entitled to any, because she has breached her morals clause by lying about her marital status. It's a pathetic scene, both because Margene's sense of her own self-worth has come to derive from her success through this television gig, and also because Margene seems unaware that one can challenge the applicability of a morals clause. Could there really be that much case law out there on the applicability of morals clauses to undisclosed plural marriages? As usual, Bill who always has a lawyer at the ready when he gets himself into a pickle, is nowhere to be found when his decisions ruin other people's lives.
Episode 1 of Season 5 also mentions that the Native American tribe with which the Henricksons had built a casino has now severed all ties with the family. That's the kind of contractual breach that gets Bill's attention, but we'll see how much of the last season is dedicated to sorting out that sort of stuff.