Monday, April 29, 2019
Would we really say that Weinstein's company's directors didn't approve of his pattern of sexual misconduct?
This, strictly speaking, isn't really a contract case, although there is an employment contract at issue so I guess that's how it got caught in my filter. But I read it and thought that this case is raising important enough issues that we should be discussing them.
The case is David v. The Weinstein Company LLC, 18-cv-5414 (RA), out of the Southern District of New York, and it's a case centering around the alleged sexual assault perpetrated by Harvey Weinstein on the plaintiff. The story the plaintiff tells is a familiar one to those who have read the Weinstein reporting, that "Weinstein asked her to meet him in his hotel room to discuss potential acting roles, and then, on one occasion, forcibly raped her." This decision isn't so much about Weinstein's conduct, though, as it is about the former directors of Weinstein's companies, who the plaintiff contends "enabled Weinstein's sexual misconduct, making them liable for general negligence and negligent retention or supervision."
The court dismisses the claims against the directors, and the reasons why were what caught my eye about this case. Plaintiff's allegations were that the directors were aware of Weinstein's harassing behavior toward women, based on a number of things: a written communication within the company calling his behavior a "serial problem" the company had to deal with; the characterization by a company executive of Weinstein's female assistants as "honeypot[s]" to lure actresses into meetings with Weinstein; a formal complaint by an employee about Weinstein's behavior; an employee memo summarizing two years' worth of allegations of sexual harassment and misconduct by Weinstein and characterizing the company as a "toxic environment for women"; the settlement of many sexual misconduct claims against Weinstein; and at least one police investigation into Weinstein's behavior.
None of the allegations established negligence on the part of the directors, according to the court. First of all, the directors did not owe the plaintiff a duty of care, and there is no case law that directors of a company can be held liable for an employee's tortious act. The plaintiff pointed to the fact that the directors renewed Weinstein's contract in 2015 with a provision that prevented Weinstein from being fired for sexual misconduct as evidence that they were enabling Weinstein's conduct, but the court found that this was "a far cry from them approving of Weinstein's sexual assault." While the court admitted that the directors "were not without moral culpability," their actions were not negligence as a legal matter.
Nor did the plaintiff assert a claim for negligent retention or supervision. The plaintiff did not show that Weinstein's sexual assault took place on the company's premises, since she asserted it happened at a hotel not affiliated with the directors. While the plaintiff argued that Weinstein used company credit cards to pay to the hotel room and lured her to the hotel room under the guise of a business meeting regarding employment by the company, that was regarding the company, not the directors sued here.
As a matter of law, the court's reasoning makes sense.
As a matter of recognition of how oppressive power structures work, this decision is terrible.
When I learned negligence way back in law school, I remember so many discussions about the policy behind it, about not wanting to hold people to a generalized duty to protect everyone on the planet, about how we decide proximate causation, about how it's really at heart about what we want to hold people liable for and what we don't.
So this decision makes sense in terms of worrying about generalized duties, of not dismissing the culpability of those committing the intentional tortious act. But it doesn't make sense in terms of thinking about the type of society we want to live in. The Weinstein reporting tells a story of serial abuse that was systemically protected for years by the power structure around Weinstein. To say that nobody else in the power structure was sexually assaulting women is a true statement of legal fact, but also seems disingenuous at this point. Weinstein's abuse was so widespread and lasted so long not only because of Weinstein but also because of the entire operation around him deflecting culpability for it.
The negligence analysis in this case feels like it's operating in a vacuum, which is kind of how we teach our students to think, presenting them with discrete hypotheticals, but might not be the best or most effective way to set up a fair legal system that protects the most vulnerable and least powerful in society. The societal discussion about the oppressive system that permitted Weinstein (and others) to perpetrate so much abuse has just begun, and maybe we should include how the legal system interacts with those power structures in the discussion. If negligence is all about policy decisions about who you need to protect and how much, then maybe we should have a policy discussion about how to make those decisions, especially if we're making them in the context of an abusive pattern that might be obscured by looking at things in isolation.
The plaintiff's allegations in this case contain many damning examples that many people around Weinstein knew about the disturbing pattern of sexual misconduct, and made affirmative choices to find ways to use the power structure to protect Weinstein. I appreciate the court's statement that the directors might be morally culpable but not legally culpable, and I recognize that law and morals are two different things. But I don't know that I agree that the director's actions are "a far cry from them approving of Weinstein's sexual assault . . . ." Given the allegations about what the directors knew and how they reacted to that knowledge, I think we could read their actions as indicating that they were a far cry from disapproving of Weinstein's sexual assault.
Monday, April 22, 2019
Don't just stand there, let's get to it: Second Circuit orders payment of "Vogue" royalties (aside, I hadn't listened to "Vogue" in a while, and it totally started my week off right!)
A recent case out of the Second Circuit, Pettibone v. WB Music Corp., 18-1000-cv, caught my eye because I teach the underlying copyright dispute driving this contractual dispute. You can listen to the case's oral argument here.
Pettibone composed the song "Vogue" with Madonna and entered into a contract with Warner where Warner collected the royalties for the song and split them with Pettibone. In 2012, Pettibone and Warner were sued for copyright infringement. They each had their own counsel and each bore their own costs in successfully defending the lawsuit, both in the trial court and on appeal. (You can read the appellate court decision here. We talk about it in my Transformative Works and Copyright Fair Use class when we do a unit on music.)
After the conclusion of the copyright suit, Warner withheld over $500,000 worth of royalties from Pettibone, claiming that under Section 8.1 of the agreement between Warner and Pettibone, it was allowed to withhold the royalties to pay for its defense of the copyright infringement suit. Section 8.1 read in part, "Each party will indemnify the other against any loss or damage (including court costs and reasonable attorneys' fees) due to a breach of this agreement by that party which results in a judgment against the other party . . . ."
Pettibone sued, arguing that he had never breached the agreement and therefore Section 8.1 did not permit Warner to withhold any royalties. The district court found that Section 8.1 "unambiguously requires Pettibone to indemnify Warner for the attorneys' fees and costs," and dismissed Pettibone's complaint.
In another example of ambiguous understandings of ambiguity, the appellate court here reversed the district court's holding, instead finding that Section 8.1 is "pock-mocked with ambiguity." In the Second Circuit's opinion, a better reading of the section was that, if there was no breach, each party should carry its own attorneys' fees and costs. In fact, Section 8.1 went on to read that "each party is entitled to be notified of any action against the other brought with respect to [the song 'Vogue'], and to participate in the defense thereof by counsel of its choice, at its sole cost and expense" (emphasis added). A fair reading of the section, the Second Circuit said, was that it required Pettibone to indemnify Warner if Pettibone breached the contract, but not otherwise.
Warner was the party that drafted the contract, and could easily have stated that indemnification happened in the event of any allegations, not just any breach. That was not, though, how the contract was drafted.
The effect of Warner's argument would be to shift a million dollars' worth of attorneys' fees onto Pettibone, just because there was a lawsuit, "regardless of merit or frivolousness." The Second Circuit found that to be "an extraordinary result" not justified by the section's ambiguous language. Therefore, the Second Circuit ordered reversal of the district court's dismissal, judgment for Pettibone, and calculation of the royalties improperly withheld from Pettibone, as well as consideration of Pettibone's request for attorneys' fees in connection with the instant action and appeal.
Friday, March 1, 2019
I have already blogged about one contract dispute over the new stage adaptation of "To Kill a Mockingbird."
Now, with that dispute settled, the former adversaries (Harper Lee's estate and the producers of the current stage adaptation) have joined forces to shut down small productions across the country of the previous stage adaptation of the novel. As the New York Times reports, the problem seems to have arisen from the conduct of Dramatic Publishing Company, which has the right under a contract signed with Harper Lee in 1969 to license theater companies to produce the original stage adaptation of the novel. The problem is that, allegedly, those rights were limited in times when a "first-class dramatic play" of "To Kill a Mockingbird" was playing in New York or on tour. However, Dramatic has apparently continued to license the play's production without adhering to the restrictions that the current play's producers argue should have kicked into place. Many small theater companies have found themselves caught in the fallout of this contractual dispute, through no fault of their own.
h/t to Eric Chiappinelli, Professor of Law at Texas Tech!
Monday, December 3, 2018
Sorry for being absent lately. Blame exam season! So this is slightly old news but I plan to bring it up in my Entertainment Law class in the spring, so I was doing a sprint through the news reporting on it: Taylor Swift and her new contract.
Sunday, October 7, 2018
Here's me poking my head out from a weekend of midterm grading to thank Banksy for a situation right out of a contracts hypothetical.
Thank you to Eric Chiappinelli and Jennifer Taub for the heads-up!
Wednesday, August 1, 2018
Yet another contract aspect has emerged to the Harvey Weinstein situation, beyond the NDAs with the accusers, the contracts between lawyers and private investigators, and the complicated situation with the National Enquirer. Now insurance policies have stepped into the fray. According to this article, Weinstein's insurance companies are denying coverage based on alleged exclusions of "blatantly egregious and intentionally harmful acts." Weinstein, as his defense has stated, denies the accusations against him and counters that the insurance companies are siding with the accusers in order to get out of paying their obligations.
According to the insurers, Weinstein is facing eighteen lawsuits and other claims that have been filed in the past year. Naturally, Weinstein's defense is costing a great deal of money. Whether the insurance companies need to pay out under the policies (and which insurance companies need to pay out) probably depends on the exact wording of the policies, which seem to all be slightly different. For instance, one carrier was providing "crisis assistance" in the event of "significant adverse regional or national media coverage." Another was apparently a policy for legal defense that according to Weinstein explicitly included criminal investigations.
Tuesday, April 10, 2018
In case you missed it in the onslaught of news we're subjected to these days, the agreements settling several of the sexual harassment claims against Bill O'Reilly have been made public, thanks to a federal judge overruling the contracts' confidentiality clauses ("Strict and complete confidentiality is the essence of this agreement," reads one). You can read about them all over, including the New York Times, CNN, ThinkProgress, and Vogue.
The contracts say the usual things that we have come to expect regarding the confidentiality of the accusations but at least one of them contains the added twist that, should any incriminating documents come to light, the woman settling the claim is required to declare them to be "counterfeit or forgeries." The truth of the statement is irrelevant; the contract evidently requires the woman to lie and say they're counterfeit and forgeries even if they're genuine.
Another interesting part of that "counterfeit or forgeries" contract is that the accusing woman's attorney agrees not to cooperate in any other action against O'Reilly and, indeed, agrees to switch sides and advise O'Reilly "regarding sexual harassment matters." This sounds like it raises all sorts of ethical issues. They're brought up in the other articles I've linked, and Bloomberg has a rundown of the ethical issues as well.
Things lurking in these confidential agreements...
Wednesday, March 21, 2018
Slate has a piece analyzing the enforceability of the liquidated damages provision in Stormy Daniels's contract with Donald Trump, quoting several very keen legal minds. (Disclaimer: including mine ;-))
Thursday, March 15, 2018
The New York Times reports that an upcoming Broadway production of "To Kill a Mockingbird" is embroiled in a contract dispute. The new production features a script by Aaron Sorkin, governed by a contract that requires it to keep to "the spirit of the Novel." Author Harper Lee's estate believes the play's new script has breached this contract provision.
The crux of the disagreement seems to be that Sorkin's script apparently updates the novel's depiction of racial politics and shifts Atticus Finch's developmental arc. Atticus, well-known as the crusading heroic lawyer at the center of the novel, apparently begins the play "as a naive apologist for the racial status quo" who eventually develops into the Atticus familiar from the novel. Sorkin in an interview described Atticus as evolving in part through interactions with a black character, Calpurnia, whose role Sorkin had expanded in the play as compared to the book.
Lee's estate is objecting to the "massive alteration" of the novel, but the play's producers contend that, although the play is "different" from the novel, it is still true to the novel's spirit, pointing out that Lee's novel's universe was itself expanded and complicated by the recent publication of "Go Set a Watchman," in which an older Atticus is portrayed as a racist and segregationist.
As anyone who's sat in an English class might agree, "the spirit of a novel" is rather vague and can be the source of much contentious disagreement. Literature can be a very personal experience, and what stands out as the vitally important part of a novel to one person can barely register to another. We could probably as a society reach a consensus on what "the spirit" of "To Kill a Mockingbird" might be, but I still don't think that would be of much assistance in resolving this dispute. There are, I think, two approaches to adapting a novel, and one is a requirement to be faithful to the letter, and the other is to be faithful in a more abstract way. I suspect that both parties here actually agree about what the spirit of "To Kill a Mockinbird" is but that Lee's estate believes the former approach to adaptation to be the only acceptable one, and that the producers of the play believe the latter to be acceptable. This reminds me of a recent New Yorker article on the proper role of translators.
(As an unabashed fan of Sorkin's writing, as soon as I read the first paragraph of the article, I have to admit my reaction was: "Let me guess, the script sounds like Aaron Sorkin instead of Harper Lee." I haven't seen the script, of course, but there are few writers in my experience whose style is as instantly recognizable as Sorkin's.)
Wednesday, March 7, 2018
That's going to be the blog's new slogan.
Frances McDormand briefly made contract law trend on Twitter by using "inclusion rider" as her important two-word closing. At the time, there was only one result for "inclusion rider" when you Googled it. Now, if you Google it, you get a million results of articles explaining what an "inclusion rider" is. But here's the original video from Stacy Smith which was the one result before McDormand made it a cultural conversation.
I've had a series of blog posts over the past few years discussing the ways in which private contract law has been used to obscure systemic discrimination and abuse and harassment (a bunch of them are linked in this post). This is a nice suggestion for a way to use private contract law to try to correct some of the problems we've now exposed.
Saturday, February 24, 2018
The Weinstein Co. has had yet another lawsuit filed against it for breach of contract over the Canadian distribution rights of “Paddington 2.” Prior to the allegations against co-founder Harvey Weinstein, the company had an agreement with Toronto-based EOne to distribute the film throughout Canada. In their lawsuit, EOne is seeking to recover $7.8 million that it advanced to Weinstein to obtain the rights to distribute the film throughout Canada. Amidst the controversy surrounding Harvey Weinstein, the company sold the rights to Warner Bros. After Weinstein broke the agreement, EOne terminated the distribution deal. The original contract provided for post-termination repayment of the advance.
Beyond the $7.8 million advance that EOne paid the Weinstein group, an action for lost profits may be available. The movie has so far grossed $192 million. The U.S. and Canadian box offices opened at $11 million. However, if EOne does decide to try to recover lost profits, it had better act fast. Since the allegations of misconduct were levied against Harvey Weinstein, the company has been on the verge of bankruptcy. The sale of “Paddington 2” to Warner Bros was enough to keep the company afloat until January. According to Reuters, the company is $375 million in debt. Killer Content and Abigail Disney have said that bankruptcy may be the best option for Weinstein Co.
Also found in the complaint is an allegation that Bob Weinstein telephoned the EOne division president to apologize for the sale to Warner Bros and to acknowledge that they would have to compensate EOne. It will be interesting to see if this argument is permitted. Further, the term “compensate” could be construed to include further damages. While only time will tell what the fallout will be from the ongoing Weinstein court battles, it is clear that the bucket is draining quickly.
Wednesday, February 14, 2018
Monetizing Sexual Harassment Contractually
In the Harvey Weinstein scandals, investigations have resulted in further almost incredible instances of alleged misconduct including:
- Verbal threats, such as telling employees "I will kill you" or "I will kill your family"
- Employing female staff as "wing women" to "accompany [Mr Weinstein] to events and facilitate [his] sexual conquests"
- Demanding sexual favors in return for career promotion at the studio
- Requiring his drivers to "keep condoms and erectile dysfunction injections in the car at all times"
- The requirement for his assistants to schedule "personals for sexual activity" both during office hours and after work
- Belittling female members of staff with insults about their periods, and shouting at one member of staff that she should leave the company and make babies as that was all she was good for.
Apparently, contracts for Mr. Weinstein contained the proviso that mistreatment claims would result in financial penalties imposed upon the accusers rather than be outright prohibited contractually. This, says some sources, “effectively monetized” sexual harassment.
Surely, no court of law would uphold a contractual clause penalizing an employee merely for making accusations of criminal conduct so long as this was done in good faith (which, as we now know, the accusations against Mr. Weinstein were). It is your legal right and arguably moral duty to call out criminal conduct when it happens. However, whether such an argument would ever be heard in court is questionable, for most employees working for famous, influential companies such as that of Mr. Weinstein and Mr. Weinstein himself are probably loath to stand up contractually against Mr. Weinstein. He clearly knew that. Many women didn’t even dare speak out against him for his criminal conduct or if they did, were not believed or helped. But these contractual clauses still show the gall, sickness, and immorality of Mr. Weinstein.
On a happier note: Happy Valentine’s Day! (I swear that the timing of this post is mere coincidence.)
Friday, February 9, 2018
I teach many Beyonce cases in entertainment law, but usually in an intellectual property context. The New Orleans Advocate reports that Beyonce has been sued in connection with her single Formation, but the lawsuit is contractual in nature. The plaintiff, Kimberly Roberts, is alleging that she entered into a contract with Beyonce to use footage from her documentary in exchange for a lump-sum payment and royalties. Roberts is alleging that Beyonce has breached the contract by failing to pay royalties. Roberts also alleges that Beyonce has exceeded the scope of the license that Roberts granted.
Thursday, February 8, 2018
I am late to the party on this, but I still thought I would point you to Jill Lepore's recent review in the New Yorker of (among other books) Orly Lobel's You Don't Own Me: How Mattel v. MGA Entertainment Exposed Barbie's Dark Side. The book is about the epic showdown between Mattel, makers of Barbie, and MGA, maker of rival dolls Bratz, and it has a contract law angle: The designer who created Bratz worked for Mattel and allegedly arrived at the design for Bratz while under an employment contract with Mattel that would have entitled Mattel to the copyright for the design.
The review relays testimony from Mattel's CEO regarding his understanding of the scope of such clauses in employment contracts, namely that they are broad enough to entitle Mattel to claim ownership of designs created decades before the employee in question was hired. Unsurprisingly, in my experience, corporations frequently believe that clauses in employment contracts are indeed very broad; it's unclear how much the assertions of such broad readings affect employees' understandings of their rights.
Monday, January 29, 2018
I’ve written many, many times now on the ways in which NDAs have been used to protect and enable systemic abuse of less empowered people, and they’re in the news again. USA Gymnastics has decided not to fine McKayla Maroney for violating her NDA and speaking out about the abuse she suffered at the hands of Larry Nassar, the Team USA doctor who recently pled guilty to sexual assault and has been accused by over 140 women. The women’s stories reveal how enforced silence can be used to obscure the full extent of harmful, abusive, and criminal conduct, making it seem as if each account was an isolated incident instead of a pattern of behavior.
A recent report from the Financial Times also makes this point. An expose on a men-only charity event in London, the article revealed that the hostesses hired for the event were asked to sign NDAs (which they were not allowed to read or take with them). Afterwards, during the event, they were subjected to multiple instances of groping, including hands up skirts, and one report of having a penis exposed to her. But we only know about this treatment because the NDAs meant to protect this behavior were broken.
Wednesday, January 17, 2018
Those posting ideas to the internet, in tweets or YouTube trailers or other websites: take note. This is an older decision, but one worth recounting on this blog I think. Out of the Central District of California, Alexander v. Metro-Goldwyn-Mayer Studios, Inc., CV 17-3123-RSWL-KSx, warns you that making your ideas available for free can mean that you forfeit the right to pursue compensation if someone else uses them.
The case concerns the movie "Creed," which the plaintiff Alexander alleged he came up with. He sued the defendants for misappropriation of his idea, breach of implied contract, and unjust enrichment. The misappropriation of idea claim fails in California, so the court moves on to the breach of implied contract claim, where Alexander also faltered because he failed to allege that he ever offered the "Creed" idea for sale. In tweeting the idea at Sylvester Stallone, the court read the allegations as portraying a gratuitous offer of the idea to Stallone.
Alexander argued that he thought he would be paid for the idea based on industry custom, and that the defendants understood that he tweeted the idea at them with the expectation of payment. But the court disagreed. All Alexander did was tweet the idea at Stallone and post it all over the internet; those actions were not compatible with expecting compensation, since the idea was widely available for free. There was never any communication between Alexander and the defendants, so the court found that it "strain[ed] reason" to imply an agreement for compensation from an unanswered tweet and the posting of the idea in other places on the internet.
Finally, the unjust enrichment claim also failed. Alexander could not allege how the defendants benefitted from his idea, since he never alleged how the defendants accepted the idea. At any rate, since the idea was available for free all over the internet, the court stated that it was "unclear" why the defendants should be expected to compensate Alexander.
Wednesday, December 20, 2017
I may have just used the recent royal engagement news as the basis of my Contracts final hypo, so I read with interest this complaint out of the Eastern District of New York, Purcell v. Pressman, 17-cv-6879 (behind paywall), that got sent to me under an alert. (I have the alert set up for "fanfiction," because of my scholarly interest in fan activities, and sometimes I get the most random hits on it, like this one.) The complaint is behind a paywall, but the New York Post has an article up that summarizes both this complaint and the previous fraud complaint filed in Connecticut District Court by Pressman against Purcell a few days before Purcell filed her lawsuit.
Basically, Purcell's complaint alleges a passionate and intense relationship begun in a hotel in Puerto Rico and continued over lavish vacations in Antigua and New York City. At one point, Pressman allegedly drew up a contract between his alleged business Triton and Purcell, containing certain provisions under which the company agreed to pay some of Purcell's expenses, although neither party ever signed the contract. The contract, according to the allegations of the complaint, was meant to be a gesture of commitment on the part of Pressman to his romantic relationship with Purcell. Pressman's complaint denies ever drafting the contract.
The allegations continue: Purcell and Pressman moved in together. A few days later, Pressman suffered a medical emergency and was rushed to the hospital after Purcell called 911. Pressman also disputes this version of the tale in his complaint, claiming he called 911 himself after Purcell failed to assist him; as you can tell, Pressman's complaint tells a different story about the relationship with Purcell, accusing her of defrauding him, instead of Purcell's opposite allegations.
While in the hospital, Purcell claims to have answered Pressman's ringing cell phone and to have realized only then that Pressman was married. The complaint then continues to allege further events in the relationship and then asserts a number of causes of action, including breach of contract based on the contract Pressman had allegedly drawn up.
The complaint concedes that neither party ever signed the contract, but Purcell alleges that she acted in reliance on the enforceability of the contract and so, therefore, the contract should be treated as valid, with the execution of it merely a formality. As I've stated, Pressman has denied ever drafting the contract.
There are no other pleadings in this case yet.
Tuesday, November 28, 2017
I spent my Thanksgiving fretting about net neutrality, so I thought for my first blog entry back from the holiday I'd let us indulge in a bit of speculation about Chip and Joanna Gaines and their future plans. My love for HGTV is well-known to my Contracts students, as I am constantly mining it for hypos, so I read with interest this Vanity Fair piece stating that Chip and Joanna from "Fixer Upper" have pitched another show to other networks. The article notes that Chip and Joanna's contract with HGTV's parent company probably prohibits them from doing another home-improvement show for another network, so it speculates that they're pitching some other type of show, possibly a talk show.
Would you watch Chip and Joanna do a non-home-improvement show? What kind of show? And do you think networks will successfully negotiate for broader non-competes to keep their stars off competing networks altogether in the future?
Thursday, November 9, 2017
I mean, our entire society is filled with contracts, so it's no surprise that Harvey Weinstein was surrounded by a web of contracts designed to protect himself from accusations. Not just the NDAs I've previously discussed, but also contracts with his lawyer and with the investigators they hired. Not to the mention the interaction between his contracts with the National Enquirer's publisher and the National Enquirer's information. Because Dylan Howard at the National Enquierer's publisher considered himself to have to act in Weinstein's best interests because of other business deals, it affected the way National Enquirer used the information gained by its reporters.
You can read the whole story here. It's extremely lengthy and I have not done it justice at all in this tiny blog entry, but it's got a lot about contracts there: what they said, why they existed, what was being done under them, etc. Just...a lot of contracts. All of them to keep people silent.
Saturday, November 4, 2017
A recent case out of the Southern District of New York, Al Hirschfeld Foundation v. The Margo Feiden Galleries Ltd., 16 Civ. 4135 (PAE) (the decision is behind a paywall, but you can read a news account of it here), is another contract interpretation case, this one involving a contract between the late cartoonist Al Hirschfeld and the art galleries that represented him. There are many things at issue in the case, among them the galleries' sale of giclees, "high-quality photostatic reproductions of existing works." The Foundation argued that the Galleries did not have the right under the contract to sell these giclees. The Galleries of course argued that they did.
The contract language at issue was a clause giving the Galleries the ability to reproduce works "in connection with [the Galleries'] promotion, advertising and marketing in furtherance of [the Galleries'] rights under this . . . Agreement." But the court found that this was a limited carve-out that did not extend to giclees. The reproductions done under this clause were meant to further the rights of the Galleries, not to be freestanding rights, which the giclees were. There was no indication that the parties intended the Galleries' ability to reproduce works to be extended to include the giclees.
There were lots of other issues in this case. I've just confined myself to this one in the interest of space.