Friday, March 25, 2022
Over on Prawfsblawg, Paul Horwitz (right) has a long and insightful rumination on some more contractual fall-out from the Russian invasion of Ukraine, a topic we have already touched on here and here. His post was inspired by the decision of the Vancouver Recital Society (VRS) to cancel a concert by Russian pianist Alexander Malofeev (below left). VRS pursued Mr. Malofeev for six years, but then said that it could not support Russian artists unless they denounced the war.
Perhaps in response, or sua sponte, Mr. Malofeev wrote on Facebook,
The truth is that every Russian will feel guilty for decades because of the terrible and bloody decision that none of us could influence and predict.
Not good enough. In a response that it described as "complex and nuanced," VRS explained why it was nonetheless cancelling Mr. Malofeev's performance.
Professor Horwitz makes great points about how decisions like VRS's are exceptional. In most situations, we swallow our moral scruples in order to get on with life. It is obviously silly to demand that Mr. Malofeev denounce the war and then cancel the concert anyway. It is obviously hypocritical to pretend that nobody knew that Putin was a war-mongering tyrant before February 2022. But for our purposes, his most interesting point is that decisions like VRS's are business decisions, and institutions caught in the battles over "cancel culture" make such decisions all the time. First Amendment principles might come into play, but how one wields the rhetorical force of constitutional rights might be overdetermined by basic math: will our bottom line look better or worse if we go forward with this event?
And so it has ever been. The world is tainted. Unless, as Professor Horwitz put it, you are a saint or a recluse, we all weigh plusses and minuses and make compromises or simply choose not to inform ourselves of the full impact of our interactions with international markets. While "cancel culture" makes surface waves, we swim in a sea of compromise culture. Most of us have to work somewhere; we have to buy our goods somewhere, and everything is ultimately inter-connected.
Okay, so Professor Horwitz covered the hard stuff, the deep stuff. I want to know the surface stuff: Did VRS have a contractual right to cancel Mr. Malofeev's performance unilaterally. If not, wouldn't VRS have to pay Mr. Malofeev his fee, and doesn't that figure into the economic calculations relevant to the decision to cancel the concert? Could there not also be downstream consequences beyond the decision to cancel this one concert? After all, Russia has produced a great many talented musicians. So has China. So has Israel. The list goes on. No state is free from moral taint. Must every artist now pin a Tweet or a post on Facebook denouncing their home state's latest atrocities? If doing so might be deemed inadequate by the concernt promoter, aren't artists in high demand like Mr. Malofeev going to demand assurances of payment in case of cancellation by the concert promoter?
Wednesday, February 16, 2022
According to Rolling Stone Magazine, the estates of some comedians, as well as some comedians who are still alive, are suing Pandora for breach of copyright. Robin Williams' estate is seeking over $4 million; George Carlins' estate is seeking $8.4 million. All together, five comedians have filed suit seeking over $40 million collectively.
While it is commonplace in the music industry for companies like Pandora to enter into public performance licensing agreements with performance rights organizations like BMI and ASCAP for musical compositions, these entities do not license literary works. Therefore, it was the responsibility of Pandora to seek out the copyright owners and obtain valid public performance licenses.
The comedians' record labels have shared their recordings on Pandora. However, the comedians claim, the recordings are separate from the jokes, which remain the intellectual property of their creators. As Variety explains here, the comedians claim "that they should be treated like singer-songwriters, earning a separate royalty for the underlying 'literary work' in addition to the performance of it."
Just a quick anecdote about Robin Williams. I saw him perform live stand-up in San Francisco. I think it must have been in the late 1980s. I went with a friend to a comedy club. At the end of the scheduled performances, the M.C. got up and said, "Hey, Robin Williams is here, and he wants to do a set. Do you all want to stick around and give him a listen?" It was late, but it was Robin Williams. We indicated our enthusiastic assent.
He was clearly excited to try out some material. He had more energy than the small space could contain. The material was raw. Most of the jokes didn't fly. He was sweating and agitated. After about ten minutes, the M.C. came back and, apologizing to Robin Williams, said that by city ordinance, he had to stop. I guess they were already past the time when comedy clubs were supposed to shut down. Robin Williams pleaded, could he do one more bit? The M.C. allowed it. It was Robin Williams. The last bit wasn't much better than the others, but he was trying so hard. He attempted to engage in "safe comedy" by placing a condom over the microphone. Edgy? In desperation, the club cut the lights and the mike. It seemed there was no other way to get him to stop.
It was not the best stand-up I've ever seen, but it was certainly the most memorable. I loved that he was still so eager for an audience, that he was still so hungry to create new comedy, and ultimately that he, by that time, rich beyond imagining, possessing iconic fame, was still so naked and vulnerable and pathetically desirous of our approval.
Watching Robin Williams cover himself in inglorious flop-sweat reminded me of Robert Musil's essay, Flypaper. Musil observes the moment when the flies stop struggling to escape the flypaper's grasp and relax a bit into their fate, freezing in ridiculous poses. "They no longer hold themselves up with all their might, but sink a little, and at that moment appear totally human." Never did I see anyone look more human than Robin Williams did as he utterly bombed in a San Francisco comedy club.
Wednesday, December 22, 2021
Now that I have finished grading exams, I can return to loftier thoughts. I have watched the first episode of "Get Back," Peter Jackson's edition of the recordings that preceded the Beatles' last live concert. Here's a teaser with a typically overlong introduction from the director:
I'm enjoying it. We paused our viewing not because we lost interest but because we want to watch with family who will be with us over this holidays. Still, I write to raise a contractual question to which the Internet has been unable to provide an answer.
I don't think it's really possible to provide spoilers to a documentary about a fifty-year-old recording session, but of course George's abrupt (and fortunately fleeting) departure from the band is one of the more dramatic moments in the documentary. After George leaves, the Beatles' road manager says something about paying George his residuals, but then someone (I'm not sure who, maybe John) says, “He shouldn’t be bothered with that. You know, that’s why we’ve got Apple, so we attend to it ourselves.”
It's rather shocking how quickly the focus moves from making music and creating immortal songs on the fly to contractual concerns. But also, what are they talking about? George's residuals from what? From everything the band had done up until the moment he pissed off? From the planned live concert performance of a proposed fourteen new songs? And did these musical geniuses also have the legal acumen to create a corporation that would seamlessly address all contingencies, including George walking out in the middle of a session? Beatles lives and Beatles lore has been picked over with fetishistic obsessions. Has anybody unpacked their corporate structure?
Thursday, November 11, 2021
We are indebted to Richard Craswell for a great deal of contracts scholarship as well as quite a few musical compositions on the subject of contracts law. We posted many of them back in 2012. This one came later:
It is worth reading Professor Craswell's notes after the case. They explain, among other things, why Judge Cardozo raises promissory estoppel but never rules on whether the College could enforce the charitable pledge on that basis.
Judge Cardozo could not really rule on that basis, because the College never claimed any reliance. Or could he? He's Cardozo! He could persuade me of just about anything. Because he did not write it (but concurred in the decision), I will never understand the reasoning in Mitchill v. Lath.
H/T my student, Tom Taylor.
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