BY:Neil J. Rosini, Michael I. Rudell
Oct 27, 2006 — (Originally published in the Entertainment Law column in the New York Law Journal, October 27, 2006)
Dancers who signed broad releases permitting use of their “life stories” in works of popular entertainment lately have been the focus of news reports on the east coast and a judicial decision on the west. One instance involves a revival of the Broadway hit, “A Chorus Line,” and another, a copyright case, relates to the popular film, “Flashdance.” Given the importance of “life story” releases in many entertainment transactions, both instances are worth examining.
In the “Chorus Line” matter, the New York Times reported this month that dancers whose stories were told in the original production were not entitled to royalties from the current revival. All of them signed releases in which they conveyed rights to their interviews for one dollar. A further agreement gave them a share of proceeds, reportedly paying in some cases as much as $10,000 per year, but it covered only the original production with no provision for the 2006 revival.
The 1974 musical, created by the choreographer Michael Bennett, was based to a large extent on his interviews with those dancers. They gave him details of their professional and personal lives and he molded their stories into the long-running hit, sometimes using “large chunks of their words,” as the Times put it. The musical won the Pulitzer Prize for drama as well as nine Tony Awards and earned more than $280 million worldwide. The article reported that dancers felt shortchanged and some were “continuing to meet with lawyers.”
So-called “life story” agreements are commonly obtained from persons portrayed in articles, books and films based on real life events. Comprised of broad grants of rights and waivers of claims relating to the finished work, these agreements are intended to avoid disputes over approvals, rights and payments. They usually are made at an early stage of a project when financial prospects are speculative, but their preclusive terms became more significant as the project earns money and the disparity between its earnings and the consideration paid to the releasor grows. Are those agreements enforceable even when that disparity becomes enormous? A recent decision by the Ninth Circuit, addressing the rights of yet another dancer, answers in the affirmative to no great surprise. But the plaintiff’s efforts to leverage ambiguities in the terms of the release and the Court’s responses to those efforts, provide useful information for those who draft or sign “life story” release agreements.
The “Flashdance” Case
Maureen Marder v. Jennifer Lopez, Sony Music Entertainment Inc. and Paramount Pictures Corporation, 450 F.3d 445 (9th Cir. 2006) was decided in June. The plaintiff appealed the dismissal of a claim for a declaration of her rights as co-author and co-owner of copyright in the film “Flashdance,” as well as other claims, including one seeking a share of revenues from exploitation of a music video starring Jennifer Lopez that borrowed from the movie. According to the complaint (which the Court accepted as true for purposes of the motion), the 1983 “Flashdance” story was modeled after the plaintiff’s life story and career. The film tells of a construction worker from Pittsburgh who performs at night as an exotic dancer with the goal of obtaining formal dance training at a university. The plaintiff said that she not only provided Paramount with details of her story with the understanding that it would be used as the basis of an original screenplay, but also consulted with the screenwriter.
The film earned more than one hundred fifty million dollars in domestic box office receipts and still earns money through television exhibitions, video distribution and from less expected sources. According to the plaintiff’s complaint, Paramount received payment for a music video released by Sony, featuring a song sung by Jennifer Lopez and her performance as a dancer, in which well known scenes from “Flashdance” were recreated.
The plaintiff received $2,300 in consideration of her signing an agreement that not only granted Paramount the right to use the plaintiff’s life story to create the film, but also purported to discharge the studio from claims arising out of the film’s creation. The release was broadly worded. It provided that the plaintiff “releases and discharges Paramount Pictures Corporation… of and from each and every claim, demand, debt, liability, cost and expense of any kind or character which have arisen or are based in whole or in part on any matters occurring at any time prior to the date of this Release.” It further stated “without limiting the generality of the foregoing release, [that the plaintiff] hereby releases and discharges [Paramount] from each and every claim… heretofore or hereafter arising out of or in any way connected with, or either directly or indirectly, any and all arrangements(including but not limited to research, interviews, costumes… and technical advice of any kind) in connection with the preparation of screenplay material and the production, filming and exploitation of the motion picture…” (Emphases added.)
The Court held that the release was governed by the same principles applicable to any other contractual agreement and that, in interpreting it, the Court had to give effect to the parties’ mutual intent as it existed when they contracted. To prove her rights to co-authorship and co-ownership, the plaintiff therefore had to explain why those claims lay beyond the embrace of the release.
The plaintiff advanced several arguments which the Court rejected in turn, while citing the breadth of the release language. First, the plaintiff contended that the release of claims relating to “any matters occurring… prior to the date of [the] release” was ambiguous and could not extinguish her copyright interests because it did not “expressly refer to her status as a co-owner of the copyright or to her alleged writing contributions.” The Court was not persuaded, holding that this argument “contravenes the plain language of the release which applied to “each and every claim… of any kind or character” related to the creation of the movie. Accordingly it was reasonable to infer that when the plaintiff signed the release, she knew or should have known that copyright claims would fall within its scope.
The plaintiff further argued that the word “matters” in that same phrase could be interpreted to apply only to “actionable conduct” occurring prior to the day of the release, thereby distinguishing her claim of infringement regarding the music video which accrued long afterward. The Court rejected this argument as well. Eschewing the “strict legal meaning” of the word “matter” in Black’s Law Dictionary (“A subject under consideration, [especially] involving a dispute or litigation; case”), and noting the absence of a special or technical meaning attached by the parties, the Court chose to define “matters” in its “ordinary and popular sense.” Instead being limited to “actionable conduct,” the Court said the word applied more broadly to the “contributions… made by the plaintiff to the screenplay before the execution of the Release.”
Next the plaintiff asserted that the release of claims relating to “any and all arrangements” did not embrace claims arising from her alleged writing contributions, but applied instead to the “specific set” of “ancillary services” she provided such as arranging interviews and photo shoots with other dancers. The court rejected this interpretation as “strained,” noting that the explanatory parenthetical which listed such tasks merely gave examples of services the plaintiff might have performed and the release was not limited to them. This interpretation was reinforced, according to the Court, by the release of Paramount from “any or all arrangements … in connection with the preparation of screenplay material,” which necessarily includes writing contributions.
The plaintiff also tried to convert a “belt and suspenders” pair of obstacles into support for her own argument. Citing the affirmative grant of rights in her life story to Paramount, she argued that it would have been redundant for the agreement also to release Paramount from all of her claims, and therefore, the release could not be given that preclusive effect. The Court found no merit in this argument because it was not “impermissibly redundant to secure a waiver of claims and a grant of rights in the same document” which parties “may include … without undermining the effect of either the grant or the release.” And, as Paramount pointed out, it was “generally recommended” that anyone seeking life story rights for use in a motion picture include both a release of claims and an affirmative grant of rights to the purchaser.
Finally, the plaintiff advanced the argument that after the release was executed, Paramount approached her seeking permission to make a sequel to “Flashdance,” thus revealing its understanding that she retained ownership rights. No sequel was ever made, however, and the Court said that its interpretation of the release was not affected by the studio’s request because even if the plaintiff retained some “undefined rights” after the release was signed, she still waived her claims relating to the original film.
In summary, the Court held that the release was “fatal” to every claim relating to the plaintiff’s alleged contributions to the movie because it specifically prevented her from pursuing any copyright interest in the film. The Court dismissed her claims not only against Paramount, but also-against Sony and Jennifer Lopez because there could be no infringement action against them in the absence of a valid copyright interest.
The release, which was reproduced in full as an appendix to the decision, included further protections for the purchaser that did not enter into the Court’s result. For example, the release included a waiver of all rights under Section 1542 of the California Civil Code, which otherwise would have restricted the scope of the release to claims which the plaintiff knew or suspected to exist in her favor at the time of execution. This is important for projects with California ties.
Further, the release language applied to uses of “any version” of the film “in any media” – a concept that has become increasingly important as new technologies create unanticipated opportunities for exploitation of creative content. The mention of “any version” and “any media,” however, could have been even broader. Reference to exploitation of the film might have included all uses of the film, in whole or in part, in any and all media both known and unknown, thereby embracing potential new applications with greater clarity and breadth.
The release terms specifically preserved the filmmakers’ creative license to tell any story they pleased, whether or not accurately reflecting the plaintiff’s story, by reserving the right to portray the plaintiff’s “life and experiences as a dancer” in ways that might be “factual and/or fictional.” Although not in issue in the this case, such provisions are intended to avoid disagreements over any manner of portrayal to which the releasor might object. People frequently dislike how they appear in photographs of themselves and the effect is magnified when it comes to theatrical feature films based on their lives, particularly when events, motives, characters and characterizations are invented.
Although the release in Marder also contained an affirmative grant of rights, it omitted a work for hire provision, which from a purchaser’s viewpoint may be the most important clause of all when a film’s subject will be providing copyrightable contributions. (Had it been included, a work for hire clause may have avoided this litigation entirely.) Section 101 of the Copyright Act specifically allows for work for hire status for “a work specially ordered or commissioned for use as a contribution [by an independent contractor]… as part of a motion picture or other audiovisual work” as long as both parties expressly agree in a written instrument signed by them.
The countervailing concern in drawing up a detailed release is getting it signed. The broader the instrument, the more burdensome it will appear to the intended releasor. To paraphrase William Shakespeare (Henry IV Part I, Act 3, Scene i,): “Glendower: I can write a release a mile long. Hotspur: Why, so can I, or so can any man; but who will sign it?”