Lawsuit Against Paramount Over Foreign Film Score Revived by Appeals Court

The 9th Circuit examines the definition of "produced" and when provisions of a collective bargaining agreement are triggered.

Paramount Pictures must again face a lawsuit from a musicians guild over a Renee Zellweger film scored in Slovakia thanks to a decision Monday from the 9th Circuit Court of Appeals.

The American Federation of Musicians of the United States and Canada brought suit over Same Kind of Different as Me and alleged that the foreign score recorded for the film breached the terms of a collective bargaining agreement that requires films produced in North America be scored there.

In June 2016, in a decision that portended sneaky importance on the labor front, a California judge looked at evidence that the single-purpose entity called SKODAM Films LLC — and not Paramount — did the bulk of the work in terms of making or shooting the motion picture and held that, accordingly, the bargaining agreement didn't apply as only big studios like Paramount were signatories to the collective bargaining agreement.

Circuit Judge A. Wallace Tashima writes for the appellate panel that this decision was an error.

The first big issue presented by the case was defining what is meant by the term "produced."

Tashima agrees with the district court's expansive definition that it can mean the taking of "actions associated with shooting principal photography" and not just as Paramount had argued, direct employment of cast and crew.

When it came to the specific provision — Article 3 — in the collective bargaining agreement, however, the district judge focused on who was the employer of those working on Same Kind of Different as Me.

The 9th Circuit by contrast states, "because the Basic Agreement relates to the hiring and employment of musicians, not the cast and crew, Article 3 applies whenever a Producer produces a motion picture and has authority over the hiring and employment of scoring musicians."

Tashima knocks the notion that just one entity can "produce" a motion picture and nods to work done in production versus postproduction. He suggests that applying Article 3 to only the employer of cast and crew could mean that a studio that has come to an agreement with a labor guild can avoid its obligations by having a different entity employ cast and crew during one part of the filmmaking process.

"That does not mean that Article 3 requires that the Basic Agreement apply anytime a Producer helps shoot principal photography on a motion picture," writes Tashima. "Rather, the Basic Agreement requires that Article 3 necessarily applies only when a signatory Producer is involved in hiring and employing musicians. Given the particular way in which scoring musicians are hired, a motion picture studio may not directly hire musicians. A composer or music contractor may directly hire and supervise musicians. The Basic Agreement makes sense only if the studio with authority over the composer is the musicians’ employer. After all, the Basic Agreement is a labor agreement between musicians and studios, not musicians and composers, and it refers to the Producer studios as the musicians’ employers."

A studio may take actions associated with shooting principal photography and have authority over the hiring and employment of musicians. The opinion states, "If so, Article 3 applies, and the Producer must score the motion picture in the United States or Canada."