903 F.3d 968
9th Cir.2018Background
- AFM (union for professional musicians) sued Paramount under §301 of the LMRA, alleging Paramount breached Article 3 of the 2010 Basic Theatrical Motion Picture Agreement by permitting SKODAM (Same Kind of Different As Me) to be scored in Slovakia rather than in the U.S./Canada with AFM musicians.
- Article 3 provides: "All theatrical motion pictures produced by the Producer in the United States or Canada, if scored, shall be scored in the United States or Canada." The Basic Agreement governs hiring, wages, and conditions for scoring musicians and functions as a work-preservation agreement.
- SKODAM Films (an independent entity formed by the filmmakers) contracted with Paramount under a Co-Financing and Distribution Agreement: Paramount financed 40% of the picture, had distribution rights, approval rights (screenplay, budget, director, lead cast), and certain creative control rights; SKODAM Films performed principal photography in Mississippi.
- After principal photography, composer John Paesano (approved by Paramount) contracted with SKODAM Films and chose to record the orchestra in Bratislava; Paramount reviewed and approved the Composer Agreement and exercised various music-related approvals and communications.
- District court granted summary judgment to Paramount, holding (1) "produced" means the entity that shoots principal photography and (2) Article 3 applies only when that entity employs the cast and crew (which the court found SKODAM Films, not Paramount, had done).
- Ninth Circuit reversed: it held Article 3 applies when a signatory Producer both (a) produces by taking actions associated with shooting principal photography and (b) has authority over hiring/scoring musicians (including via control over composer/contractor). The court also reversed exclusion of an internal Paramount email and an expert report.
Issues
| Issue | AFM's Argument | Paramount's Argument | Held |
|---|---|---|---|
| Meaning of "produced" in Article 3 | "Produced" includes entities taking actions associated with principal photography (hiring, budget, approvals), not only direct payroll employment | "Produced" means the entity that directly makes/shoots the picture and employs cast/crew | "Produced" covers entities involved in principal photography decisions (shooting, hiring, budget, approvals); term ambiguous on its face, resolved by bargaining history to include principal photography involvement |
| Whether Article 3 applies only if Producer employs cast & crew | No — Article 3 is a work-preservation clause tied to authority over hiring musicians; employment of cast/crew is irrelevant | Yes — Article 3 applies only when Producer employs the cast/crew and thus the employees covered by the CBA | Rejected Paramount’s narrow reading; Article 3 applies when signatory Producer produces (as defined) and has authority over hiring/employment of scoring musicians |
| Whether Paramount had sufficient control over SKODAM to trigger Article 3 | Paramount exercised approvals and music-related control (composer approval, Composer Agreement review, music executive communications) and thus may have authority to hire musicians | Paramount was only a co-financier/distributor; SKODAM Films did principal photography and directly engaged personnel | Genuine dispute of material fact exists on whether Paramount’s contractual and practical control over composer/score was sufficient to trigger Article 3 — summary judgment inappropriate |
| §8(e) "hot cargo" defense (affirmative) | AFM: Article 3 is a valid work-preservation clause and thus not barred by §8(e) | Paramount: enforcing Article 3 would improperly pressure neutral SKODAM Films (secondary employer), violating §8(e) | §8(e) does not bar valid work-preservation clauses; because factual dispute exists whether Paramount had power to give scoring work, summary judgment on §8(e) defense improper |
Key Cases Cited
- M & G Polymers USA, LLC v. Tackett, 135 S. Ct. 926 (2015) (principles for interpreting collective-bargaining agreements)
- CNH Indus. N.V. v. Reese, 138 S. Ct. 761 (2018) (contract interpretation principles apply in labor context)
- Alday v. Raytheon Co., 693 F.3d 772 (9th Cir. 2012) (de novo review for contract interpretation on summary judgment)
- NLRB v. Int'l Longshoremen's Ass'n, AFL-CIO (ILA I), 447 U.S. 490 (1980) (work-preservation clauses and §8(e) interplay)
- Nat'l Woodwork Mfrs. Ass'n v. NLRB, 386 U.S. 612 (1967) (§8(e) prohibits secondary pressure to involve neutral employers)
- United States v. Hinkson, 585 F.3d 1247 (9th Cir. 2009) (abuse of discretion standard for evidentiary rulings)
- George Day Constr. Co. v. United Bhd. of Carpenters & Joiners of Am., 722 F.2d 1471 (9th Cir. 1984) (examples of subcontracting/work-preservation issues)