Last week, it emerged that musician-turned recurring guest star on Keeping Up with the Kardashians, Kanye West, is allegedly tied to a contract that has ‘no end in sight’. According to reports, the Chicago-born rapper originally signed a deal with music giant EMI in 2003 which has apparently been extended by mutual consent every five years. However, counsel for Mr West submitted that these extensions are invalid post-2010, that the deal is ‘lopsided’, and that he has been dramatically underpaid for years.
The initial submissions, which were filed with Los Angeles Superior Court in January, note that under the terms of the contract as it currently stands, Mr West is required to ‘remain actively involved in writing, recording and producing’ music which EMI are then free to distribute. Most contentiously, the contract also reportedly states:
‘At no time during the term will you seek to retire as a songwriter, recording artist or producer, or take any extended hiatus during which you are not actively pursuing your musical career in the same basic manner as you have pursued such career to date’.
Chief amongst the concerns of Mr West and his legal team is the fact that the contract allegedly stipulates how many songs he must write at different stages and more worryingly, as far as EMI are concerned, the contract has no end in sight. As part of the proceedings, Mr West is also seeking a declaration that he is the sole owner of any music created after October 2010 – the point at which the alleged invalidity of the contract begins. This would make him the owner of his most critically acclaimed album to date, My Beautiful Dark Twisted Fantasy, which was released in November of that year.
EMI’s defence is grounded in the provisions of the Copyright Act, and for this reason they are seeking an application to move the case from a state court to a federal court, as the latter has jurisdiction over intellectual property cases. American copyright law is contained in Title 17 of United States Code, which contains the Copyright Act of 1976 and all other subsequent amendments to this area of the law. Section 102 (a) broadly defines the area in the following terms:
‘Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression…including literary and musical works and any other accompanying words…’
Therefore, it is fair to say that the dispute as to Mr West’s attempts to claim authorship of his post-2010 work may well fall under the jurisdiction of a federal court – although generally, authors of works, be they musical or otherwise, must wait 35 years before reclaiming full rights of ownership to their work. Now, we must turn to the second aspect of this case, the claimed forced performance of a contract of service which is alleged to have expired.
(Los Angeles Superior Court Facade - Shutterstock)
The applicable law here is California Labour Code s 2855, also known as the ‘De Havilland Law’ after the famous actress and later, legal case of the same name. This law explicitly prevents the courts from mandating specific performance of contracts of service. Under this law, contracts of service which create an exclusive and non-delegable duty to be borne by one party in favour of another – excepting apprenticeships – are not enforceable beyond seven years post commencement of the initial contract.
Simply put, this means that where an individual has signed up to exclusively perform with, or in the case of Mr West write and produce musical works for, a commercial entity, then this contract will not be enforceable by way of specific performance seven years from on from the date it was first commenced. Although, it should be noted that EMI claim the contract is governed by the laws of the State of New York and not California as Mr West's legal team seems to believe. The key question at play here therefore seems to be jurisdictional in nature, so let's take a look at case law from LA as well as some from other jurisdictions.
In the De Havilland case, the respondent film company submitted that these contracts of service should be treated as suspended in the intervening periods where the actor is not directly involved in creating work for the studio. Since no one works seven days a week – excepting legal professionals of course – counsel for De Havilland argued that this would have the effect of turning a seven year contract into an almost lifelong agreement. The court agreed and interpreted the contract to mean seven calendar years from the date of signing.
Famous invocations of this law have arisen down through the years. In 1979, the host of The Tonight Show on NBC, Johnny Carson, used s 2855 to sever his deal with the network while he considered bids from rival stations, before ultimately agreeing to stay with the network for increased pay and a decreased workload. Actor Karl Urban famously invoked use of the law in 2013 after falling out with producers over the perceived ‘marginalisation’ of his character Dr Leonard McCoy in Star Trek: Into Darkness. Despite this, the studio offered him a more lucrative contract so as to guarantee his character did not have to be recast in subsequent films.
The English case of Lumley v Wagner (1852) also falls for consideration here. The traditional position was that the courts were hesitant to order specific performance of any contract that required a degree of supervision. In this case, the defendant – an opera diva described in the agreement as the cantatrice of the King of Prussia – agreed to sing at the plaintiff’s theatre exclusively but subsequently made arrangements to sing at another theatre for a larger fee. The plaintiff sought to prevent this from happening. Lord St Leonards granted the relief sought, but noted that only the negative obligation of this contract could be enforced, meaning that the singer could be prevented from singing elsewhere, but could not be forced to perform at the plaintiff’s theatre. This conclusion is understandable, as to enforce such a provision would be dangerously akin to slavery.
(Royal Opera House London, the venue at the centre of the debate in Lumley - Shutterstock)
And lastly, an important distinction was drawn in Warner Brothers v Nelson (1937) whereby the defendant agreed with the plaintiff that she would not act with another studio for five years. Branson J at the Kings Bench division of the High Court found that the negative obligation of this contract could also be enforced, given that the actress in question was not mandated to continue acting with the plaintiff nor was she going to be forced to stay idle – she was free to take up less lucrative, non-acting work. Thus, it can be said that this case followed the general line of judicial reasoning laid down in Lumley. In a comprehensive judgment, Branson J stated:
‘True to the principle that specific performance of a contract of personal service will never be ordered, [the court will not] grant an injunction in the case of such a contract to enforce negative covenants if the effect of doing so would be to drive the defendant either to starvation or to specific performance of the positive covenants’.
That said, the authority of Nelson has been diluted. In the subsequent case of Page One Records, a pop group known as The Troggs employed the plaintiff as their manager for five years, agreeing not to appoint anyone else to the role for that time. As commonly occurs, this agreement was then breached. The court recognised that to enforce the negative obligation contained in this agreement would be comparable to forcing them to function without a manger for five years. This case was factually distinguished from Lumley as this case did not merely involve the interchange of money for services but rather, involved a level of trust and confidence on each side. This approach was then followed in Warren v Mendy, where a boxer was allowed to change his trainer in similar circumstances.
While one should generally not dare to offer an appraisal of the strengths or weaknesses of a case at such an early stage, especially one as complex as this, it is fair to say that Mr West’s case will pay much greater dividends if it is ultimately heard in Los Angeles under Californian code. Even though it may be a moot point insofar as the outcome is concerned, it is worth imagining this case through the lens of the English judiciary. If Mr West's case arose under the prior line of judicial reasoning, he would likely have been unsuccessful.
Steven Shavell of Harvard Law School has been writing lucidly on this topic for many years. In his 2005 paper, ‘Specific Performance versus Damages for Breach of Contract’, Shavell submits that under US law, contracts to provide personal service generally cannot be enforced via specific performance and the negative injunction is generally preferred. He then goes on to discuss the various solutions other countries have adopted to the issue of attempted specific performance in respect of contracts of service.
In France for example, a distinction is drawn between contrats á donner (‘contracts to give’) and contrats á faire ('contracts to do’). The former are enforceable via specific performance and the latter are compensable in damages only. The same regime applies in Germany in theory, although specific performance is more widely available in respect of contracts of service in practice. It is always refused where the cost would create a disproportionately burdensome situation for the seller – ie, where services would have to be being provided at a loss.
It is hard to disagree with the line of judicial reasoning laid down in this area in De Havilland and the subsequent American cases. Refusing to enforce specific performance of these contracts beyond seven years grants greater autonomy to the creator of the copyright material. Seeing as initial contracts generally contain less favourable terms than those offered to established artists, there is no harm in creating a statutory endpoint for such agreements – thus prompting re-negotiation which may be exploited by the copyright creator for commercial gain.
The traditional rationale against allowing applications for specific performance in relation to contracts to provide personal services is that to do so would evoke connotations of slavery – the forced performance of lifelong obligations. That said, the contention in Nelson that showbiz personalities like Mr West would still be free to take up other, less lucrative work is also valid – say, designing $300 dollar sneakers for Adidas or perhaps releasing a second edition to accompany his wife’s incredibly successful book of selfies. No, that really happened.
In any event, it remains to be seen whether this case will proceed under Los Angeles law. If EMI are successful in showing that the contract is indeed governed in the state of New York, there might not be a corresponding provision, similar to s 2855, under which Mr West’s case would likely be successful. With that in mind, West’s 2016 single, No More Parties in LA, now seems oddly prophetic.
For further reading on the intricacies of specific performance as it pertains to contracts of service, see Contract Law (2nd Ed) by McDermott & McDermott, which is available for purchase here.