ContractsProf Blog

Cardozo Cup 2024 Entrants and Winner

Below are the seven student artists who participated in the 2023-2024 Cardozo Cup competition at OCU Law.  The challenge is to create an original work of art celebrating Judge Cardozo (in contracts, we are exclusively interested in New York Court of Appeals Judge Cardozo, rather than in the later Justice Cardozo).  

And here is the winner, J Badillo, pictured with his contracts professor and visiting dignitary Oklahoma City Mayor and OCU Law School Dean David Holt.  

Lest anybody think I chose the winner because it implies that I am Judge Cardozo's ward and sidekick, I note that the winner was selected through anonymous student voting tallied by Judge Cardozo's ward and sidekick.

National Consumer Law Center Presents: 75 Ways to Avoid Arbitration

We learned from that great legal authority,Paul Simon that there are fifty ways to leave your lover.

You know what's even better than that? Getting out of binding arbitration (if you are a consumer who would rather be in court, that is).  And now, the National Consumer Law Center has collected seventy-five ways to challenge an arbitration agreement.  It's not as catchy as Paul Simon's tune, but it seems more practical than "Make a new plan, Stan."

Hat tip to John Wladis!

Weekend Frivolity: A NY Times-Style Connections Game for the Weekend

Below are sixteen words to be categorized in four sets of four words that can be grouped together.  Each set of four words share a common theme.  Can you solve it?

Hint: the four sets of words go with four indictments, two federal, two state.

Thanks to my friend David Blatt for the idea!

Weekend Frivolity: Cycling and Situational Ethics in Oklahoma

Image by DALL-E

For those new to the site, Weekend Frivolity is for lighter stuff, or just stuff which may or may not have any contracts content.  I think there are a few intersections between the musings that follow and contracts law, but I will not specify them in the post.

I was on a bicycle ride yesterday morning when I saw a car coming my way.  As it passed, I noticed that there was something on the hood of the car on the driver's side, and after it passed it dawned on me that that something was a woman's handbag or purse.  I was a bit slow to realize what I was seeing.  I recently read about a fad in the 1980s among orcas of wearing dead salmon on their heads like hats.  My first thought upon seeing a bag perched atop an SUV was "Orcas." 

When I came to my senses, I turned my bike around thinking I might pursue the car and warn the driver, but she had a lead on me, the speed limit was 25 mph, and the road was slightly uphill.  Just as I was calculating my slim chances of catching the car, I saw another car approach, and I flagged it down.  I told the driver of my concern.  He asked, "That car up there?"  I said, "Yeah, I don't know if you can catch her, but you've got a better chance than I do."  "Yessir!" he said, as he threw his car into reverse and headed off on his new task.

I don't know how the story ends.  I had done what I could to help.  All that remained was curiosity, and rather than sate it, I heeded the call of the ride.

This is what Oklahomans tell me is Oklahoma at its best.  People look out for one another.   But where do I, as a transplant, fit in?

I moved here from Valparaiso, Indiana.  Back in Valparaiso, my friend David and I were walking a circuit along the main drag of our small city arguing about whether moral truths exist, as one does.  I was anti; he was pro.  As we were walking, I noticed something fall from the hand or pocket of a man walking ahead of us.  When we came up to the spot, I saw that what he had dropped was a credit card.  I picked it up and ran after its owner.  I haled him and said something like, "I think you dropped this" while holding out the card.  He looked puzzled, and then a look of recognition and self-reproach came over his face.  He took the card, muttering, "I guess I did," and his friends all teased him.  To be honest, I thought a "thanks," was in order, but I consoled myself that the deed had its own rewards.

Chidi Jackson Harper, who played Chidi Anagonye, Image by aitchisons from United States, CC BY 2.0, via Wikimedia Commons

Not so.  When I jogged back to David so that we could resume our peripatetic conversation, he was grinning.  He had caught me engaging in a moral act.  "Why did you do that?" he gotchaed.  "It's just how I was raised," I answered irritably.  I did not enjoy having my conduct held up as  evidence of moral truths.  I explained that it cost me nothing to return the card to its owner, but it would have really ruined his day if he had lost his card.  Why do nothing when you could effortlessly do something and save someone a lot of trouble?

That is my ethical position, but it is not THE ethical position.  Often we can't help, and so it's hard to know when to act and when to abstain.  What of the poor good Samaritan whom I flagged down?  What obligations did I saddle him with?  How do you communicate to another driver up ahead of you that she left her purse on top of her car?  If he did not catch up with her and the purse fell into the street, does he then have to pick it up rifle through it for some useful form of identification and try to track her down?  I really didn't think through all of the consequences of my act of getting this stranger involved in something that really wasn't his problem.  

There was a time back in Valparaiso when, again riding my bicycle, I came upon a cell phone in the street.  I imagined that the driver had been in the nearby pharmacy, had come out with bags and kids in tow, had placed her cellphone on top of her car so that she could free her hands to unlock her car and load it up.  Then, she drove off without retrieving her phone.  It then fell into the street when she turned.  I'm not sure why, but I was able to get into her call history and started calling numbers to see if anyone could contact the owner and have her come pick up her phone.  The first person I reached was confused.  "What do you want from me?" she asked.  I explained that I was hoping that she could help me track down the owner.  "But why do you think I can help you?"  I told her that hers was the last number the owner had called before she lost her phone.  "Well, I can't help you."  Both participants in that phone call were confused and annoyed.  Eventually, I think I connected with a mother-in-law, who eventually sent her son to retrieve the phone, and he confirmed my hypothesis about how the phone ended up in the street. 

Moral of the story?  Connecting the phone with its owner took a chunk out of my day.  What motivated me?  Sunk costs?  Of all the people I encountered in this episode, only the mother-in-law seemed to grasp the situation and understand why I was calling.  The husband seemed more focused on being amused at his wife's mistake. 

Perhaps my friend David had also seen the card but didn't trust his ability to find the right owner or just thought trying to find the owner was not the best use of his time.  If that were so, I would say that David and I had different ethical positions in that instance.  I would continue to enjoy his company, and we would continue to debate the existence of moral truths.  Of course, I would be convinced that my ethical position is the right one, but I know that it is only the right one for me.  Through our conversations, David and I might arrive at agreement on what we think would be the right thing to do as a general matter, and David might say that we had thereby arrived at a moral truth.  I would say that we had established only an inter-subjective truth, not a universal one.  

Ultimately, I am agnostic about the existence of absolute moral truths; I am only confident that we either cannot know them or can never be certain that we know them.  And given the limits of the knowable, there is no basis to behave as though one possesses something that is unobtainable, perhaps because it doesn't exist.  Sometimes I forget that this is my belief, or I don't act on that belief.  At such times, I am a self-righteous a-hole.  But when I remember my beliefs and act  in accordance with them, I find it much easier to live with people who have come to believe other things.

These reflections make me think I ought to read Scanlon's What We Owe to Each Other. But that's what I thought when I listened to Chidi Anagonye (above left, sort of) talk about it, and if Chidi couldn't get me to read it, I don't know if my bike ride ruminations will do the trick.

Weekend Frivolity: Reflections on Community and My Mother

My mother (at right, with my wife and me), who will be 92 in June, was hospitalized this week.  She lives in Jerusalem, and I live in Oklahoma.  Not much I can do but watch for reports from my brother who has gotten into a routine of driving up from his Kibbutz in the Arava (the southern section of Israel that borders on Jordan) when my mother gets sick.  She is not particularly ambulatory, but she is sharp and as active as she can be.  She was frustrated that she could not get released in time for a meeting of her women's organization (Na'amat).  An offshoot of Israel's national labor organization (Histadrut), Na'amat focuses on childcare and women's issues related to employment.  Much of my mother's adult life when she lived in the U.S. was devoted to volunteer work for that organization, and she went to work for them full-time when she moved to Israel in 1983.  She had baked cookies for the meeting, and as she was not able to attend, she dispatched her home health aid to deliver the cookies to the group. 

My mother's commitment to her Na'amat club is of a piece with our upbringing.  The central experience of my youth -- far more important than school or schul or neighborhood friends -- was the labor-zionist youth movement (Habonim -- now Habonim-Dror) of which I was a member from the time I was nine years old.  I devoted every summer to the movement's camp in Michigan until I graduated high school.  During the school year, I attended regular meetings of the organization on weekends, meetings that I led when I entered high school.  I have an ambivalent relationship with Zionism, but the communitarian ethos of the organization has stuck with me, and it is something that links me to my siblings to this day.  My sisters homes are gathering places.  My brother lives on a  collective (Kibbutz) that is being progressively privatized, over his objections.  My daughter (below left, with me and her grandmother) attended the same summer camp I did , not because I planned it that way, but because we visited for a reunion when she was eight , and she asked, "Dad, can I go to this camp, because I think it's a really good camp?"  

At that reunion, I was reminded of an incident of which I have no clear recollection.  When I was twelve or thirteen, Habonim had planned a winter seminar to be held in the one winterized building in our camp in Michigan.  Participants drove down from Wisconsin and then gathered in Skokie so that we could make the trek together, but a winter storm closed the roads, and we were all stranded in Chicago's north suburbs.  There were fifty kids with no place to go, so my mother offered our house, and we hosted the winter seminar in our 1200-square foot home.  Everyone had brought sleeping bags, and so at night there likely was very little floor space in the house that was not occupied by a sleeping child.  The person who reminded me of the incident had been one of our guests that weekend.  He thought my mother was extraordinary to host 50 kids for a weekend.  I could say that the event made no impression on me because it was extraordinary only in its magnitude.  Otherwise, it was totally in keeping with my mother's commitment to community.  That is true, but it is also true that  I just have very few memories of my childhood (and college is pretty spotty too).   I had to confirm the details with my sister.

I think I became an academic for two reasons.  First, I wanted to live a life of the mind.  Second, I wanted to be part of a community, and universities are ready-made communities.  Valparaiso's law school was a great first home for me because, when I arrived, there were still faculty who had been there since the 1970s and for whom the law school was the center of their existence.  Some of them lived within walking distance.  Many of them were in the building at all hours and on weekends.  They hosted events for students in their homes.  We had a reading group.  We knew each other's families.  Now that attitude towards a workspace is rare.  Staff and administrators sometimes praise me because, unlike many of my colleagues, I come to work every day.  I can't take credit for being more devoted to my work than my colleagues.  I just crave community.  

These are hard times for communitarians.  JFK said "Ask not what your country can do for you. . . . "  Ronald Reagan encouraged voters to ask not whether the country was better off but whether  they personally were better off under the Carter administration.  I wasn't old enough to vote, but I bristled.  The country voted for Reagan, and many still revere him.  He didn't single-handedly deflate the communitarian ethos of the New Deal and the New Frontier, but he paved the way for a libertarian ethos that seems to many of my students to be the only perspective that makes any sense.  And then came COVID, which took us from the world of bowling alone to a world in which professional success is measured in terms of one's ability to demand that one be permitted to work from home.

It is not for me to pass judgment.  There used to be communities for people like me outside of religious institutions, and now they seem to be dwindling.  That makes me sad, but I can see retirement on the horizon, and I may take some comfort then that the academy I leave is not the academy I joined.  Still, if I am blessed with  my mother's longevity, I hope that there will still be groups for whom I can bake some cookies.

BigLaw and Non-Negotiable Expectations

I worked at a BigLaw firm.  It was a great experience.  I worked long hours, but I mostly worked for a partner who, like me, was a new father.  He had four children -- triplets, followed by "baby oops" 14 months later.  I had just one daughter, but she was reason enough for me to value weekends in Brooklyn.  So we both worked long hours during the week, getting to the office by 9:30 and working until 8 PM or so some nights and until 2 AM others.  Once it got past 8 PM, it didn't much matter to me how late I stayed, as my wife and daughter would be asleep when I got home in any case.  The partner I worked for would go home to help his wife with bedtime rituals, but he had a home office, and we would be in touch through the night.

The work was interesting, and I really liked my co-workers.  They were serious but fun-loving, with the gallows humor that comes from hard toil in relatively luxurious surroundings and punctuated by occasional experiences of plenty beyond our youthful imaginings (at least for some of us).  Senior associates were for the most part supportive and mentoring, partners were demanding, but avuncular (there were precious few women partners in our group), serious, capable, and hard-working.  I did not aspire to their stations.  They worked as hard as I did, and they had to deal with clients, from whom I was wisely kept away.  

And yet, as great as the experience was, every time someone left the firm, we all thought that they were leaving for something better, and we were happy for them.  When I took my farewell tour of the firm, senior associates were wistful.  I had a Ph.D., so the leap to academia made sense and seemed fore-ordained.  I had been teaching as an adjunct at Brown the semester before I left (one can bill a lot of hours in the "quiet car" on the Acela from Manhattan to Providence!).  There were sighs and references to golden handcuffs.

Last week, Bethany Biron of the Business Insider along with many other sources, shared this slide, allegedly from a presentation given to new associates at Paul Hastings:

Not very much of this accords with my experience of firm life.  Perhaps I was lucky; perhaps things have changed.  But twenty years ago, the following was true:

1.  My salary as an associate was shockingly high -- starting at four times what I made as a history professor before going to law school.  Other than that, my job was not a privilege; it was the offer I took among other offers.  Most of my peers had far more offers than I did, and the job was, for most of us, a stepping stone or a means of paying off loans and getting good experience before moving into a more comfortable life.

2. My relationship with senior associates and partners was collegial.  As a litigation associate who mostly wrote briefs, I was deferential to what more senior lawyers told me about what to include in the brief, but I would also push back if I had become more familiar with the law or the facts because I was closer to where the rubber hit the road.  Other than a couple prickly senior associates who were more interested in their status than in being good at their jobs, the people I worked with would not have wanted it to be otherwise.

3.  Once in my four years at the firm, a partner chastised me for not seeing a voice mail he had left me at 7 AM until 9 AM.  He yelled at me, and I yelled at him, because he could have e-mailed me if he really wanted to contact me  -- I would have seen that and come in early.  I had been in the office until 2 AM the prior night working on a brief.  He was mad, but he was also grinning a bit, perhaps remembering why he never wanted to work with me.  He didn't give me any more work after that, and that's fine.  He chewed up associates and spat them out, but he wasn't going to get his teeth into me.

4.  As a litigation associate, my timelines were set by courts, not by clients.  We did good work for clients, making troublesome suits go away through dispositive motions.  I never felt any pressure from clients to work at anything other than my usual pace.  The partners told me when they wanted things, and I met the deadlines.

5. Associates are billed out at ridiculously high rates.  That is true.  It is also true (or so I was told) that clients challenge billing rates, and partners have to write off time that is not well spent.  That is the real point -- if you are not productive, you are expensive for the partner; that is what you should probably keep in mind.

6. It is true that a person who gets paid like the associates at BigLaw should own their mistakes -- and such mistakes should be exceedingly rare when the stakes are high.  But you are always part of a team, and when my team made mistakes, we put all our energy into addressing the mistakes and none of our energy into determining who made the mistakes, unless in an attempt to make sure that the mistakes were not replicated.

7. Work from homes was not a thing in Y2K, and I don't understand the passion for it now.  I loved going to work and seeing my colleagues face to face.  I still do.

8. No questions?  Life for me was a continual back and forth with the partner and associates with whom I worked.  When I rose to the level of mid-level associate, I would have been miffed if I gave an assignment to a new associate and they did not come back to me with questions.  They would spin their wheels and waste their time.

9. If "I don't know" is the truth, it is the best possible answer.  Especially if it is followed up with, "I will research the matter and get back to you."  I had the experience many times that a more seasoned lawyer would ask a question to which I had no good answer.  They knew to ask about what were for me unknown unknowns.  Pretending that I knew about something I had not considered would have been disastrous for all involved.

10. For some new associates, the firm is the beginning of a career; for others, it's a job.  It can be rewarding; you can learn a lot, but it might not be your passion.  If you cannot find the inner resources to do your job to the best of your ability, you should indeed move on.  But your reputation does not turn on it.  Firms do not bad-mouth former employees.  I worked with only two really bad lawyers at my firm.  One became a head-hunter, and she had a very successful career.  The other became a journalist, and he has nearly 100,000 Twitter followers.  I worked for another lawyer who wanted ever-so-badly to be a partner.  He didn't make it.  They rejected him.  He went in-house for one of the firm's clients, and the last time I saw him he was regaling partners with stories that I doubt were any more interesting than the stories he told as a senior associate.  They hung on his every word, stopping only to refill his drink or fetch him more hors d'oeuvres.  

Weekend Frivolity: Oh, This Is Even Better than "No Vehicles"

What if Wittgenstein had come up with the "No vehicles in the park" hypothetical?

H/t Richard L. Jolly, via Stephen Mouritsen via Twitter.

Weekend Frivolity: Contracts Prof Publishes Two Sonnets

I am happy to share that I have published two sonnets in Light.  These are my first published poems, unless Limericks count, and they don't.  

The setting is fitting for frivolity, as Light publishes humorous verse, and at least one of the poems is truly frivolous.  My poems are in good company; links to some highlights below.

Frigaliment fans might also want to have a look at Bruce Bennett's, A Vulture Is a Vulture Isn't a Vulture.

Andrew Frisardi contributes a lovely Ballade for the late Tim Murphy, one my favorite contemporary poets, whose unrivaled ability to write love poems for hunting dogs is on diaplay here.

The issue includes a Limerick-loving lawyer as well, and Stephen Gold's biographical note  is almost as charming as his poem.

Chris O'Carroll's Life Is Better with Cannibals is a great slice of life, especially if like me, you currently live in Oklahoma.  

The issue also includes two new poems from Wendy Videlock, along with the wonderful news that she has both a new book and a collection of essays forthcoming.

Weekend Frivolity: The OCU Law Cardozo Cup

At my old law school, we had an annual softball tournament.  The 1Ls played the 2Ls.  The winner of that game played the 3Ls.  The 3Ls cheated, and so they won and got to play the faculty/staff team.  By the time I arrived, the faculty/staff team had to be supplemented with alumni, and still we struggled.  Our best shot was to hope that the keg of beer that the SBA provided for the occasion leveled the playing field.  The winner would have their team name inscribed on the Cardozo Cup (left).  

But here at my new law school, we have started a new tradition.  For the First Annual Cardozo Cup Competition, I asked my contracts students to create an original work of art in honor of Judge Cardozo.  The winner was awarded the new cup (right) this week.  The Law School Dean stepped up to announce the winner.  The academic fellows, who have been helping my students throughout the year, brought in the trophy and handed it to the winner, who was cheered by his classmates.

It was a great competition, with entries spanning the visual and language arts. The students voted, and it was a close but uncontested election.  The winner, 1L Ethan Tourtellotte (pictured below, left), composed a poem in honor of Judge Cardozo.  Other leading contenders were 1L Blake Bush, who composed a noir short story with Judge Cardozo as the lead detective, and 1L Tom Taylor, who composed the Van Gogh inspired image featured below, right.

I am proud of my creative students and happy that they share my enthusiasm for Judge Cardozo, the William Faulkner of the U.S. common law.

 

 

 

 

 

 

 

 

Airbnb Host Spying on You? Tell it to the Arbitrator!

It’s April and many of us are looking forward to spring break or, further ahead, to summer where we might go on vacation and rent out a nice Airbnb someplace like Florida. Just in time to ruin what may be the best part of vacation – the anticipation – is this case involving a spying Florida condo owner and an unsuspecting Texas couple.   Since it’s behind a Bloomberg paywall, and some of you may not have subscriptions, here’s a brief summary of the disheartening facts.

The Texas couple decided to vacation in Longboat Key, Florida, renting a condominium unit through Airbnb.  The unit was owned by Wayne Natt who, the couple alleges, secretly recorded their entire three-day stay in the unit!  This included their “private and intimate interactions.”  After they somehow learned about the recording, they sued both Natt and Airbnb.

Their claims against Natt are obvious (intrusion, loss of consortium, being a %@)#( jerk!!, etc.)  Against Airbnb, they claimed that the company should have warned them that these types of privacy invasions have happened at other properties and that it should have ensured that this property did not have any electronic recording devices.  Readers of this blog can predict what happened next – Airbnb filed a motion to compel arbitration.  Yes, that old story.  It argued that pursuant to their Terms of Service, which the couple had agreed to by clicking, the couple had agreed to have an arbitrator decide the issue. 

The trial court had granted Airbnb’s request to allow the arbitrator to decide venue, but the intermediate court reversed, stating that the reference to arbitration rules was not “clear and unmistakable.”  The Florida Supreme Court last week quashed the intermediate court’s ruling and reinstated the lower court’s decision finding that the arbitration agreement “clearly and unmistakably evidences the parties’ intent to empower an arbitrator, rather than a court, to resolve questions of arbitrability.”

In so ruling, they focused on this language in the TOS:

The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the "AAA Rules") then in effect, except as modified by this "Dispute Resolution" section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section

Rule 7 of the AAA Rule states that the arbitrator has the power to rule on the arbitrability of any claim and on the arbitrator’s own jurisdiction.  Because Rule 7 was incorporated by reference, it became part of the TOS.

So the next time you plan your Airbnb vacation, especially if it’s in Florida, don’t forget to give it a full sweep for hidden cameras because apparently, spying hosts are not that unusual (and who wants to end up in arbitration?)  Or maybe next time, just check into a good old-fashioned hotel.

Weekend Frivolity: A Whole New Word le!

But first, a secular prayer:

I have friends who play Wordle and post their results.

I have friends who play Wordle and do not post their results.

I have friends who do not play Wordle (how do you resist?).

I have friends who play Wordle and friends who do not play Wordle who find it annoying when people post their Wordle results.

You are all dear to me.

Some friends who play Wordle post their results and then say something else.

It can be anything, like "I only got it because I was thinking of my favorite song."

Other friends who play Wordle respond to such statements with alarm: "I got it in only three guesses, but only because of your hint, and now my whole day is ruined!"

You are all dear to me.

And so, from now on, please do not tell one another, absent clear expressions of voluntary consent to such communications, whether or not you play Wordle.  Also, absent clear expressions of voluntary consent to such communications, do not, by any sign, sound, mannerism or activity give expression to anything that communicates or could be construed as communicating whether or not you play Wordle.

 

Moreover, whether or not you play Wordle, absent clear expressions of voluntary consent to such communications, do not, by any sign, sound, mannerism or activity give expression to anything that communicates or could be construed as communicating how you did on that day's puzzle and what might have led you to the correct word or to have missed guessing the correct word.

I think, if we all live by these simple rules, we can all get along.

H/t Wendy Hinton Vaughan, who may or may not play Wordle

Sid DeLong, Thirteen Ways, With Apologies to Wallace Stevens

Readers seeking to make sense of this effort are invited first to read
Wallace Stevens’s, Thirteen Ways of Looking at a Blackbird
THIRTEEN WAYS OF LOOKING AT A CONTRACT
Sidney Wallace DeLong

I.
Three blackbirds on a swaying cedar bough
Wind sighing on a dotted line.

II.
The economist bought twenty-four blackbirds
Making the pie larger.

III.
Under duress
I find I must accept
The blackbird’s morning offer.

IV.
Angry flutters
In mating season
Black forms battle silently.

V.
The blackbird’s call is neither interpreted
Nor construed.
The blackbird is neither interpreted
Nor construed.

VI.
How many seeds will the blackbird find?
Quantum meruit
No more, no less.

VII.
The question is
What is a blackbird?
Everything except a goose, a duck,
Or a turkey.

VIII.
At four minutes after dawn, the blackbirds
Reach consensus ad idem
Then, silence as ascent.

IX.
Six blackbirds are a legal fiction
One blackbird six times is a legal fiction
One blackbird is a legal fiction

X.
A blackbird sits outside your window
Laissez ou´ prendre
He is there.

XI.
The blackbird performed
As required
But in bad faith.

XII.
Bug in beak
The blackbird returns to the nest
Pacta sunt servanda.

XIII.
Startled
An integration of blackbirds
Arise as one
Mutuality of Ascent

Weekend Frivolity: Not Feeling Very Frivolous this Weekend

Spice DAO and the $3million Dune art book

I haven’t been blogging much because I have another new prep this semester – Copyright!  I’m delighted to be able to teach the subject which I’ve been wanting to do for years.  I’ve been keeping my ears open for good copyright/contracts news to blog about and thought I'd share this one. 

A few weeks back, an anonymous blockchain collective called Spice DAO (decentalized anonymous organization) acquired at auction a rare art book, Jodorowsky’s Dune, which was a guidebook to a film adaption of Dune (but not that film adaptation).*  It’s a little confusing, but according to this Esquire article, in 1974, director Alexander Jodorowsky wanted to make a film adaption of Dune but due to a variety of funding issues, including Salvador Dali’s desired salary of $100,000 per minute and roles for Orson Welles and Mick Jagger, that film was never made.  Jodorowsky also created a book which includes a storyboard by Moebius, a pseudonym for the French artist and cartoonist, Jean Giraud.  Rumor has it that less than twenty copies of this book are in circulation.  Last fall, Christie’s auctioned a copy and Spice DAO surprised everyone by bidding $3million when the appraisers had expected that it would sell for, oh, $40,000. 

But Spice DAO wasn’t planning to just flip through the pages and admire the lovely artwork.  No, they had plans -- BIG plans! For one thing, they were going to make the book public!  They were also going to issue NFTs based on the book, then burn the book and record it on video that they would then turn into an NFT!  They also planned to create an animated series based on the book!

Only their $3million purchase only bought them a copy of the book, not the copyright to the book, which meant that they didn’t actually have the right to do any of that stuff (i.e. create derivative works).  Plus the book was already public.

Spice DAO (and please refrain from calling them Spice D’OH! Because that would just be hitting someone when they’re already down $3million) is still charging ahead with somewhat modified plans, but I don't think they will be able to carry through with them if they aren’t able to acquire any licenses from the copyright holders. 

I also briefly ran through potential contract defenses (unilateral mistake?  unconscionability?  breach of warranty?)  but none of them seem to apply.  Maybe there’s some fine print on the Christie’s auction contract that might help them?

Their best bet, IMHO, is to turn these really sour lemons into lemonade by writing a movie about a band of crypto investors who end up buying a copy of a book under an assumption that turns out to be completely false.  The entire Internet mocks them but they put on a brave face and carry on because after all, haters gonna hate!  The experience causes them to make dramatic changes to their lives. One of them even becomes a copyright and contract lawyer, reading fine print on behalf of their impulsive but enterprising clients.  What the world doesn't yet realize is that this is what marks the beginning of Web 3.0 and a brave new metaverse where nothing makes sense anymore.  Hijinks ensue. 

*Dune was eventually made into an epic movie (which I have yet to see) and it was recently nominated for ten Oscars, including for best picture. 

Weekend Frivolity: The Anniversary of the Best Thing to Come of the Pandemic

The pandemic has brought us experiences that we would not have encountered without it.   This week is the anniversary of one of the best.  It still makes me laugh.

 

Quentin Tarantino gets sued, demonstrating that NFTs are about contracts after all

I’m excited to teach copyright this semester and while I miss teaching contracts, there is a lot of synergy between the two subjects.  So, I was interested to read that the director Quentin Tarantino is being sued by Miramax in an action claiming copyright infringement and breach of contract.  The lawsuit involves Tarantino’s efforts to auction pages of the script from Pulp Fiction as non-fungible tokens or NFTs. 

(Readers of this blog are of course familiar with NFTs, thanks to Juliet Moringiello and Christopher Odinet’s article and Jeremy Telman’s blog post on it here).

The issue is whether Tarantino owns the rights to the NFTs.  That will depend on the contract between Tarantino and Miramax and whether the language the parties used was broad enough to capture this type of technology – technology that wasn’t contemplated at the time the parties entered into their agreement.

 

Weekend Frivolity: Flash Fiction

Wordle, The Bildungsroman

It was 2 AM when K awoke out of unruly dreams and found himself thinking about Wordle. He lay in bed, his mind uselessly racing about the tasks of the day like a dung beetle careening aimlessly against the walls of a small cell. K grabbed his phone.

"This is what I've been reduced to," he thought. I'll play Wordle. That will relax me so that I can get back to asleep. K entered a variation of his usual opening gambit. One green; two yellow. "A nice start!" K congratulated himself. "I shall make quick work of this!"

A word occurred to him. It was simply a matter of sliding the two yellow letters over one space to the left, and the one, obviously correct choice magically slid its way into his consciousness. K felt giddy as he typed in the letters. His heart raced. "This is not good," he chided himself. "I will be very excited to solve it on the second guess. I've never been able to do that before.  I’ll never get back to sleep if I can do that."  He exhaled slowly to slacken his pulse and hit enter.

One green; two yellow. K's brow furrowed. He was mildly relieved, but he was also annoyed at the puzzle and at himself. "Hubris!" he berated himself, actually hissing the word under his breath so as not to awaken other family members. This was typical of him. He tended to exaggerate his own capabilities. His parents had remarked upon it from his youth, and in adulthood, so had his co-workers and supervisors. "You get ahead of yourself, K," his supervisor had said only the past week. "Remember, slow and steady wins the race." K silently cursed his supervisor, a narrow fellow with limited prospects.  But in this instance, K also knew that his supervisor's rebuke was mild compared to what K deserved.

K stared at the puzzle. No words came to mind. He looked at the available letters. Unpromising recruits all. He returned to the letters he had to work with.  Was there some mistake?  Why had the puzzle rejected his earlier guess?  There was no way to make a word if the letters could not be in their current positions or in the positions he had ventured in his first attempt. 

“Wait a tick,” K thought.  When he had googled “Wordle” to get to the puzzle, hadn’t he seen a link called “Why your Wordle streak will end today”?  Was this some devilish puzzle with no vowels?  Or using the same vowel thrice?  Isn’t the creator of Wordle a Brit?  Was the answer today some obscure Britishism like bollocks or chuffed or knackered?  Too long.  Cuppa?  K felt the anger towards all people with posh accents rising in his chest.  All thoughts of a return to sleep had been vanquished. 

K wanted to give up on the puzzle and go back to sleep.  But what happened if he stopped?  What if his phone died in the night?  Would Wordle close?  Would his streak end?  Is there a time limit on the game?  If you can’t guess the answer in four hours, do you lose?  He adjusted his position and looked at the letters again.  Despicable malingerers.  K had used all the good letters.  The remaining letters were all poseurs.  They could accomplish nothing without the lovely letters that the puzzle had rejected.  No.  That was unfair.  These letters had their uses.  K himself had used them repeatedly.  But there was no way to fit them into the spaces left in the puzzle while still using the green letter and the two yellow letters.  None at all.

Perhaps the problem was not the letters.  Was this it at last?  K was by no means old, but was this how senility begins?  Words that used to offer themselves willingly now hide in strange corners, just out of reach.  Just yesterday, K had been able to solve the puzzle in three guesses.  Where was that spark now?  K began to substitute loathing for yesterday’s K for his prior loathing of the Brits.  He bore down; looked at the letters again. 

Nope.  Nothing.  He was retreading the path.  Going over combinations he had tried before and rejected.  Two paths diverged in a yellow wood, and K took the same one over and over again until he starved to death.  He started typing in combinations that he knew were not words in the hope that the puzzle might take them and, at the very least, help him eliminate some of these feckless letters. Certainly there were no words that would come to his aid.  Finally, in desperation, K created a word with his one green letter and four new letters, abandoning any hope of finding the right place for his two yellow letters. 

“You’re pathetic,” he told himself, all the while expecting the puzzle to reward him with two new green letters that would magically reveal the mystery that had somehow eluded his baffled understanding.  Nothing.  Grey upon grey.

K felt trapped.  He could not complete the puzzle; he could not sleep.  He drearily regarded the remaining available letters.  Miscreants all!  He would banish them all from the kingdom of his vocabulary.  Better still, he would live the rest of his life as a mute rather than allow any of the sounds associated with these letters to escape his lips.  He would go through his library and black out all of those letters from his books.  He would, he would . . . .  Wait a minute. 

Suddenly, K saw a possible solution to the puzzle.  He typed it in.  It looked fantastical dancing on his phone’s screen in the darkness.  Could this work?  He checked the rows above this savior of the world.  It all checked out.  He hit enter with the grimness of a man triggering the descent of the blade on the guillotine into which he had just introduced his neck. 

Green, green, green, green, green.

With grim satisfaction, K returned his phone to his nightstand.  In the morning, he would tell his supervisor where to stick it.   4/6.  Probably nobody else on earth had solved this puzzle, but K had!  In only four guesses!  He had suffered long enough among mediocrities incapable of appreciating his insight, his wit, his bold creativity.  Yes, yes.  In the morning, he would be recognized for . . . all . . . his . . . worth, for . . . all . . . his . . . pizazzzzzzzzzzzzzzzzzzzz. . .  [snore].

Wordle 208 4/6

⬜🟨🟨⬜🟩
🟨🟨⬜⬜🟩
⬜⬜⬜⬜🟩
🟩🟩🟩🟩🟩

When You've Finished Grading Question 2 . . .

But need a break before proceeding to Question 3 . . . 

Enjoy.

Caturday

Phineas really did not like this caption.

Weekend Frivolity: Steve Vladeck Meme Caption Contest

Since the very idea for weekend frivolity came from Steve Vladeck and Bobby Chesney's wonderful National Security Law podcast, it seems highly appropriate to celebrate Steve's memification in this forum.  Please enter your proposed captions to the Steve Vladeck meme in the comments.  Thoughtful people be warned: the comments page refreshes frequently and will delete your comments.  Draft in Word and then cut and paste before posting!

If we get enough entries (i.e., more than one), we can do a Twitter poll and the winner will get bragging rights.

Here's the meme:

May the best caption win!