9th Circuit sides with musicians' union in dispute with Paramount over 'Same Kind of Different As Me'

By Charmaine Little | Sep 21, 2018

SAN FRANCISCO – The U.S. Court of Appeals for the 9th Circuit sided with a musicians’ organization that sued Paramount Pictures Corp., reversing a lower court’s order, on Sept. 10.

The appeals court overturned the U.S. District Court for the Central District of California’s ruling that favored Paramount. In the lawsuit brought via Section 301 of the Labor Management Relations Act, the American Federation of Musicians of the United States and Canada accused the major motion picture company of breaching a collective bargaining agreement concerning the film "Same Kind of Different As Me." The movie was scored in Slovakia.

The organization claimed Paramount violated the terms of Article 3 of the Basic Theatrical Motion Picture Agreement of 2010. That agreement obliges movie studios to use AFM musicians to score the movie domestically if the film is produced domestically.

The appeals court determined the lower court “misinterpreted Article 3 to apply only if a signatory producer employed the cast and crew shooting the picture,” the ruling states.

The court said Article 3 did apply in this case because it operated as a work preservation provision that ordered when a studio has to hire the musicians. Considering this, Article 3 is applicable if Paramount had power over the hiring process for the scoring musicians, even if the studio didn’t hire the cast and crew.

While Paramount argued Article 3 infringed on the National Labor Relations Act’s “hot cargo” clause (which blocks an employer from signing on to a contract to stop being involved with the products of another employer or to stop doing business with another person), the appeals court disagreed and said the “hot cargo” clause doesn’t include valid work preservation agreements.

The appeals court also said the lower court erred when it didn’t include an expert report concerning an internal Paramount email. It reversed the trial court’s rulings altogether.

Circuit Judge A. Wallace Tashima authored the opinion. Circuit Judges Marsha S. Berzon and Morgan Christen concurred.

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