Monday, October 4, 2021
On her concert album, Miles of Aisles, Joni Mitchell (right and below, petting Buddy in the Oval office) is tuning up, and people are shouting requests at her. Joni (we've been on a first-name basis since the 70s) is also an accomplished painter and she muses:
That's one thing that's always, like, been a difference between, like, the performing arts, and being a painter, you know. A painter does a painting, and he paints it, and that's it, you know. He has the joy of creating it, it hangs on a wall, and somebody buys it, and maybe somebody buys it again, or maybe nobody buys it and it sits up in a loft somewhere until he dies. [Joni tends to go to dark places.] But he never, you know, nobody ever, nobody ever said to Van Gogh, "Paint a Starry Night again, man!" You know? He painted it and that was it.
And then she proceeds to perform The Circle Game, which I hope she was planning to play regardless of fans' requests.
And yet, for some reason, the Danish Kunsten Museum at issue in Sid's post from earlier today essentially said to the artist, Jens Haaning, "Hey, paint A Starry Night again, man." Except it wasn't an immortal painting that is etched in the consciousness of every sentient being who has ever had the pleasure of marveling at it, it was a piece of concept art that will be as ephemeral in our consciousness as the last one about which we commented on this blog.
According to the BBC, Haaning was asked to reproduce previous works of art in which he had framed currency representing the annual salary in Denmark and Austria (you can view his previous works here). That seems like a risky request to make of a conceptual artist interested in the plight of the working man. Joni Mitchell understood the difference between making fixed works of art and performance art. She didn't necessarily appreciate people shouting requests at her as though she were some street corner musician playing For Free, but she recognized that it is socially acceptable to ask a musician to play a request but inappropriate to ask a painter or a sculptor to reproduce a work of art (unless the artist is Bob Ross, who re-created each painting thrice!).
Sid DeLong has already covered the legal issues in the Haaning case well. I think the contract case and the restitution claim are easily separated. The museum contracted for a conceptual work of art, and it got more than it bargained for. Mr. Haaning's original work might have caused some sort of stir in the art world, but it was nowhere near as successful as Take the Money and Run, the art of breach of contract as performance. The success of the work has garnered the museum and Mr. Haaning far more notoriety than they would have gotten from a reproduction of Mr. Haaning's work.
However, it appears that he never contracted for the right to keep the 530,000 Danish kroner he was supposed to use to make the art. The title of his blank canvases could be construed as an admission of liability. Not having seen the documents relating to the deal between artist and museum one cannot be certain, but it is hard to imagine a legal argument for why Mr. Haaning should get to keep the money.
Friend of the blog Mitu Gulati has also published a discussion of The Cheekiest Artist of Modern Times over at Credit Slips.
Wednesday, September 8, 2021
Writing as I do from Oklahoma, home state to the Bob Dylan Archive, Levy v. Zimmerman caught my eye. What's that you say? How can there be a Bob Dylan archive in Tulsa, Oklahoma? Why, it makes perfect sense if you think about it. It's right next to the Woody Guthrie Center (right). You should come and visit! And if you're hungry after that, you can come to my home city, OKC, and dine at Nonesuch, America's best new restaurant, according to Bon Appetite! Just sayin'.
Anyway, back in the early 70s, Bob Dylan collaborated with Jacques Levy to write ten songs, seven of which, including "Hurricane," were included in Dylan's 1975 album Desire (my second favorite Dylan album after Blood on the Tracks). I'm confused as to why Bob Dylan, America's great minstrel, needs help writing songs, but such are the uncontested facts. Levy was entitled to royalties on the songs, and he received $1 million. Levy died in 2004, but his estate and his publishing company seek an additional $1.75 million. Dylan sold his catalog of 600 songs to Universal Music Group (Universal) for $300 million, and plaintiffs allege that $1.75 million is their fair share of that sale.
As in the case that was the subject of yesterday's post, we are dealing here with a creator who contracts away his intellectual property rights in exchange for royalties. The court found that Dylan was the copyright holder and that Levy had no claim for breach of contract arising under the catalog sale to Universal.
This ruling was largely based on the contracts designation of Levy as an "employee" hired to help with composition and entitled only to limited royalties. Plaintiffs attempted to counterpunch, arguing that limiting the contract to that characterization elevated form over substance. They produced detailed expert testimony from Bob Kohn, who characterized the relationship between Dylan and Levy as giving rise to "joint works" and a shared "undivided interest" in the songs.
Mr. Kohn was fighting above his weight class. Justice Barry Ostrager of New York's Supreme Court, New York County cut him to ribbons:
In sum, the "expert" affidavit offered by Bob Kohn purporting to interpret the 1975 Agreement is inadmissible to offer an opinion as to the legal rights and obligations of the parties under the unambiguous contract . . . . Kohn's opinion is, in any event, unpersuasive as it distorts the plain language in the Agreement. Defendants' limited citation in their moving papers to Kohn's treatise does not change that result, as the Court is not relying on any extrinsic evidence to interpret the Agreement.
As Mr. Levy might have put it, Justice Ostrager
could take a man out with just one punch
But he never did like to talk about it all that much
"It’s my work", he’d say, "and I do it for pay
And when it’s over I’d just as soon go on my way"
He ruled based on the unambiguous meaning of the agreement:
[T]he Agreement unambiguously limits plaintiffs' compensation rights to 35% of monies received by Dylan for licensing rights granted to third-parties for the performance and use of the Compositions but not for any portion of the proceeds from Dylan's sale of his complete copyrights related to the Compositions that were explicitly vested in him alone pursuant to the express terms of the 1975 Agreement.
Justice Ostrager also dismissed Plaintiffs' claims against Universal as third-party beneficiaries of the catalog sale. Plaintiffs could make no claim to the status of third-party beneficiaries to that sale. He likewise dismissed their tortious interference claim. Absent a breach of contract, there can be no such claim.
In a case such as this, it seems inevitable that one of the parties would lament:
How can the life of such a man
Be in the palm of some fool’s hand?
To see him obviously framed
Couldn’t help but make me feel ashamed
To live in a land
Where justice is a game
Friday, August 20, 2021
Thursday, June 3, 2021
Thanks to Richard Carlson of the South Texas College of Law Houston, we can share this recording of the original Broadway production of "Bloomer Girls," the musical.
Nearly 80 years later, this song still slaps.
For another musical take on Parker v. 20th Century Fox, this one from Professor Richard Craswell, you can check out this earlier post.
Friday, March 26, 2021
I am increasingly aware of how dated my attempts at pop-cultural references are. When I started teaching law in 2004, I could assume that Simpsons references and Seinfeld references would be met with some smiles of recognition. That seems to be less the case now. I don't even know who the famous pop stars or movie stars are these days. My students seem to watch a lot of reality television shows, and I am not familiar with any of them. They, for some reason, do not share my enthusiasm for Star Trek or Breaking Bad. We had a moment of shared ground this week having to do with shrimp tails in breakfast cereal, but how long will that last?
Desperate, I asked my students the other day what musicians they liked. Alexis Benitez recommended Bad Bunny. He shared a video, and thus I was not completely ignorant of the young artist when he won a Grammy soon thereafter. Now that I am an unofficial member of the Bad Bunny fan club, Alexis and another 1L Haidee Macedo gifted me a Bad Bunny mask, along with a Limerick commemorating my introduction to Bad Bunnydom. Here they are:
The gift is especially sweet because Alexis and Haidee are in different sections, and in our COVID world, our seven (count 'em!) sections of 1Ls rarely get to interact with one another, and almost never get to meet each other in the flesh. How charming then that a mask of all things should bring together these two 1Ls during this pandemic.
It feels like we are nearing the end of this experience. But until we get there, you can expect to see me in my brand new Bad Bunny mask!
Bad Bunny, can you take us out?
Tuesday, March 23, 2021
Ever since we broke the news of a man who bought a man who bought a valuable 15th-century bowl for $35 (by linking to stories about the incident), the Internet has picked up on the story and its happy conclusion, with a sale of the bowl for over $700,000 at auction. We posed the non-musical question of whether the doctrine of mistake would apply. Probably not.
Friend of the blog John Wladis reminds us of the similar and yet strikingly different case of the Chelsea doors. According to this account, Jim Georgiou, a former resident of the Chelsea Hotel, went into the hotel as it was being renovated to use the restroom. He noticed that the workers were discarding the old doors, which frankly appear unspectacular. But Georgiou knew that famous artists and celebrities had stayed in the rooms concealed behind those doors, so he rescued them, connected the doors to the celebrities, and then arranged to have them sold at auction, where they fetched over $400,000. Georgiou, who was homeless at the time that he salvaged the doors, shared half the proceeds with City Harvest, which helps feed the indigent in the city.
The New York Times had a fine piece on the unique status of the hotel and the significance of the doors as souvenirs from various cultural moments now swept away by the currents of history. Perhaps the lucky yard-sale enthusiast will be inspired by Georgiou's example and donate some of the proceeds from his find to a worthy cause . . . .
Monday, March 8, 2021
I am teaching Jacob & Youngs v. Kent this week, which makes me happy. I am always happy when I get to teach a Cardozo opinion just like I would be happy if I were teaching in the humanities, and this was the week we get to discuss James Joyce's "The Dead." Always happy to have new insights on the case, and the Promises, Promises episode on the case is full of them.
For one thing, the hosts point out, in passing, that Kent might have had a special yearning for Reading pipe, because it had a special status. He longed to shower every morning in water coming through his Reading pipes, the Manolo Blahnik of pipes. Knowing that the water he was using was flowing through the high-status Reading pipes delighted him, and he so he would sing Barry Manilow's "Looks Like We Made It" every morning as he exfoliated. Yes, I know, that's totally not what that song is about. It doesn't help. The hosts' brief, anachronistic mention of the Manilow song planted an earworm, leaving me no choice but to exorcise it by sharing it with you.
In the alternative, Professors Wilkinson-Ryan and Hoffman entertain the possibility that the Reading pipes were Kent's brown M&Ms, a topic on which we have previously posted. If that were the case, however, the time to object to the Reading pipes was before completion. If the building is otherwise sound, the lack of Reading pipe does not serve the purpose that the brown M&Ms allegedly served.
Friday, February 19, 2021
Readers of this blog are probably tired of me taking every possible opportunity to encourage people to download Sarah Dooley's new album, Is This Heartbreak? I know. It's tiresome. But Sarah is the daughter of my fabulous former colleague, Laura Dooley, and I can honestly say that Sarah is to music what Laura is to Civil Procedure. I can also honestly say that I don't know what that means.
I've decided to turn over a new leaf. Today, I'm pushing people to buy Sarah's first album, Stupid Things. And the infancy doctrine has given me a reason to do so. Readers of this blog are familiar with the infancy doctrine, which lets people under age 18 disaffirm their contracts, often without any adjustment for depreciation or damage (unless caused by the infant's tortious conduct). Seems nuts, especially if the contracts are basically fair and the infant gets to enjoy whatever was bought without having to compensate the seller for depreciation. Sarah's lyrics on the title track explain why this might make sense from a policy perspective:
You're allowed to do stupid things
When you're young
People look the other way
At least that's what people say
You're allowed to try pot
You're allowed to get shot
You're allowed to do anything once
Cause you're young
Yeah you're young
Yeah you're young
Public policy analysis you can dance to.
Thursday, December 24, 2020
Beautiful rendition of this classic, fittingly sombre for this very odd version of the holiday.
We wish everyone a safe holiday with best wishes that the vaccines will facilitate raucous celebrations some time in the coming year!
Friday, November 27, 2020
In this Italian hit song from 1972, you will hear what sounds like unaccented American English lyrics but is in fact gibberish. Fascinating. Thanks Kim Krawiec!
Sunday, November 15, 2020
From the sublime (Joni Mitchell) to the ridiculous.
Mitchill v. Lath is about a collateral oral agreement to remove an icehouse from a neighboring property as part of a real estate transaction. I make much of the fact that my students probably have no idea what an icehouse is. I knew there was a band called Icehouse. Actually, I knew of two bands called Icehouse. I play short excerpts from each band and invite the students to imagine how annoying it would be to have them on the neighboring property.
But I didn't know until now that one of the bands has a song called "No Promises." Enjoy, even though it does not seem that the promise at issue in contractual:
h/t Edward Swaine
Friday, November 13, 2020
We have it on good authority that Joni Mitchell's song "California" is about the parol evidence rule. When she says that Paris is "too old and cold and settled in its ways," she is really talking about New York. When she says "cold," she is referencing the icehouse in Mitchill v. Lath, when she says "old," she is noting that Mitchill is an old case, and the fact that her name is Joni Mitchell is a dead giveaway, even though she tried to fool us by varying the spelling. The lyric "Oh, but California . . ." clearly indicates her preference for Judge Traynor's approach to the parol evidence rule. Listen for yourself:
Friday, October 23, 2020
One of the best things about teaching at Valparaiso University Law School was getting to work with Laura Dooley, a fantastic, teacher, scholar, and colleague. In addition, Laura comes with two lovely daughters, one of whom is the supremely talented Sarah Dooley. Below is a video highlighting Sarah's talents as a singer, songwriter, musician, actor, and comedian. If you like what you see, please support Sarah's art and Laura's retirement by watching Sarah' album release show tonight!
Sunday, October 11, 2020
Saturday, July 25, 2020
Saturday, July 18, 2020
Sunday, May 17, 2020
One of the great benefits of being at a small law school in a small town is that you get to know not only your colleagues but also their delightful and talented children. Among the most delightful and talented is the incomparable Sarah Dooley, daughter to my former colleague, Laura Dooley. Sarah is trying to continue to entertain us from her small New York apartment.
If you enjoy this video and would like to see more content from Sarah, you can follow here on Instagram or on Twitter at @iamsarahdooley
Sunday, May 10, 2020
Friday, May 8, 2020
In 2013, as we reported here, Rock & Roll Hall of Fame producer Quincy Jones (right) brought suit seeking $30 million from MJJ production. Jones alleged that he was entitled royalties and remix fees in connection with his role in making three Michael Jackson records, Off the Wall, Thriller, and Bad. Jones alleged that MJJ had violated his contractual rights by using music from those records in the posthumous Jackson documentary This Is It and in two Cirque du Soleil shows. In 2017, a Los Angeles jury awarded Jone $9.4 million in royalties in connection with "This Is It."
This week, a California appellate court reduced that award by $6.9 million, finding that the trial court had inappropriately allowed the jury to decide issues of contractual interpretation that should have been decided by the court. The appellate court found that the jury misinterpreted the extent of Jones' entitlement to payment under the contract and that some of the claims were too speculative to be a basis for recovery.
The appellate court first held that § 4(a) of Jones's Producer Agreements entitled him only to a 10% royalty fee on record sales. Jones was not entitled to licensing income, nor was he entitled to fees for remixing Masters. In the alternative, the appellate court held that remix damages were too speculative to be recoverable.
According to the court, the Producer Agreements gave Jones a right of first opportunity to remix the Masters, and Michael Jackson (with his family, left) had paid Jones a share of all license fees for use of Masters for some time. However, between 1993 and 2008 Jackson released remixes without offering Jones the opportunity to participate. After Jackson's death in 2009, the remixes of the Masters were used in This is It, which grossed $500 million.
The appellate court's interpretation of ¶ 4(a) turned on its determination that extrinsic evidence proffered by Jones was inadmissible. The trial court erred in permitting the jury to consider that evidence, and the jury's erroneous award was informed by that inadmissible evidence. The court held that the Producer Agreement did not require Jackson to pay Jones remixing fees and that extrinsic evidence revealed no latent ambiguity regarding that term.
Hat tip: Rachel Arnow-Richman
Sunday, May 3, 2020
Some of our readers might recognize this new feature of the Blog, "Weekend Frivolity" is ripped off form the frivolity segment of the National Security Law Podcast. In this case, imitation is indeed the sincerest form of flattery. If you aren't currently subscribing to the podcast, you should be, even if you aren't interested in National Security Law. It is fun to listen to Bobby Chesney and Steve Vladeck argue about just about anything.
I'm tipping my hat extra hard in the post because I discovered this video on Bobby's Twitter feed. It has something of an Austin feel to it, but I'm afraid I don't know if the Bar & Grill responsible for this video is an Austin joint. Perhaps a knowledgeable reader can enlighten me in the comments!