Far Out! Entertainment Contracts Get Embark Into Deep Space

[WSJ_law_blog]

You might not think that the topic of dense and overwrought contract language would make for an engaging or — dare-we-say — funny front-page article in the WSJ. But oh how you’d be wrong.

Reporter and LB colleague Dionne Searcey churned out a little gem of a story in the Journal today on the depths to which entertainment contracts have gone to hammer home the position that, well, we have rights and you don’t.

Exhibit A: Anne Harrison. Searcey writes that she and the other women in her Bulgarian folk-singing group were all ready to try out for NBC’s “America’s Got Talent” TV show when they noticed certain wording in the release papers they were asked to sign.

Any of their actions that day last February, the contract said, could be “edited, in all media, throughout the universe, in perpetuity.”

Really? “Throughout the universe?” Is that necessary?

Entertainment outlets seem to think so. Searcey writes experts in contract drafting (lucky souls that they are) say lawyers are trying to ensure that with the proliferation of new outlets — including mobile-phone screens, Twitter, online video sites and the like — they cover all possible venues from which their clients can derive income, even those in outer space. (FremantleMedia, one of the producers of NBC’s “America’s Got Talent,” declined to comment on its contracts.)

Searcey writes that the space and time continuum has extended to other realms outside the arts, including pickles. A 189-word sentence in a September agreement between Denver-based Spicy Pickle Franchising Inc. and investment bank Midtown Partners & Co. — which has helped raise capital for the sandwich and pickle shops dotted across the region — unconditionally releases Spicy Pickle from all claims “from the beginning of time” until the date of the agreement. “We’re trying to figure out how to cover every possible base as quickly as possible,” says Marc Geman, chief executive officer of Spicy Pickle. “When you start at the beginning of time, that is pretty clear.”

Some legal experts rail against such language as imprecise and unnecessary. Ken Adams, a Garden City, N.Y., attorney and lecturer at the University of Pennsylvania Law School who advocates for clarity in contract language, says references to outer space and the end time are silly.

But Eric Goldman, an associate professor at the Santa Clara University School of Law who specializes in intellectual-property and Internet law, says the language could be “a stroke of brilliant foresight.” Referring to geographical limits loosely can be dangerous, he says. For instance, “the United States is an ambiguous term . . . American Samoa, yes or no?”

“Throughout the world” would be one alternative, but that excludes possible future markets, he says. Some day, Goldman adds, people might ask, “What were they thinking? Why didn’t they get the Mars rights?”