A recent ninth circuit ruling underscores the importance of good contractual management procedures. The case was brought by Maureen Marder, who sold her life story to Paramount Pictures for $2,300 under a general release. That story formed the basis for the 1983 motion picture Flashdance. Flash forward 20 years to 2003. Jennifer Lopez duplicates a number of Marder’s now-famous moves in her new video “I’m Glad,” a Sony release. Marder sues alleging that use of the moves by JLo was a copyright infringement.
The ninth circuit decided that the problem with Marder’s case was that Sony (producer of JLo’s video) had an arrangement with Paramount for use of said moves. The court examined the original contract between Marder and Paramount and agreed that while it appeared to have been a raw deal for Marder, there was no evidence that the release was obtained by fraud, deception, misrepresentation, duress or undue influence. In addition, the court found the language of the general release to be very broad, which clearly opened the door for utilization beyond the original motion picture.
The court’s decision is an excellent example of the importance of using good contracts and procedures. Following are some examples that should be considered:
· Contractual acquisition of all the necessary rights, licenses, releases and consents applicable to content or services. For an insurance applicant, the broader the grant of rights they procure, the better. There is a difference between a TV series and a movie, print and digital, etc. Consider not only the intended immediate use but also possible future use of the material.
· New hire and independent contractor agreements which include signed statements to the effect that they will not disseminate or use a previous employer’s or client’s trade secrets and other intellectual property. Tying in an indemnification provision and insurance requirements would make such a contractual provision even more beneficial.
· Disclaimers. Whether on a website where content is made available or in a contract for services, good disclaimer language can help make very clear how reliable particular information is deemed to be and for what uses it may or may not be appropriate.
· Content searches and intellectual property clearances performed by a qualified professional. This could be done in house or contracted out depending on the nature/use of the content and the size of the company producing it.This case is also a great example of why having a well-worded contract does not preclude the need for insurance. While the defendants prevailed in this particular case based on the strength of the release, significant amounts of time and expense were incurred in defending the case. A strong contract can prove to be your most valuable defense, but it won’t necessarily stop somebody from suing you. If you’d like to read more, here’s a link to the case.