American Federation of Musicians of the United States and Canada, Plaintiff-Appellant,
v.
Paramount Pictures Corporation, Defendant-Appellee.
Argued
and Submitted February 8, 2018 San Francisco, California
Appeal
from the United States District Court No. CV 15-4302 DMG for
the Central District of California Dolly M. Gee, District
Judge, Presiding
Robert
Alexander (argued), Jeffrey R. Freund, Abigail V. Carter, and
Adam Bellotti, Bredhoff & Kaiser PLLC, Washington, D.C.,
for Plaintiff-Appellant.
Adam
Levin (argued), Emma Luevano, and Emily F. Evitt, Mitchell
Silberberg & Knupp LLP, Los Angeles, California, for
Defendant-Appellee.
Before: A. Wallace Tashima, Marsha S. Berzon, and Morgan
Christen, Circuit Judges.
SUMMARY[*]
Labor
Law
The
panel reversed the district court's grant of summary
judgment in favor of defendant Paramount Pictures Corp. in an
action brought under § 301 of the Labor Management
Relations Act, alleging breach of a collective bargaining
agreement in connection with the motion picture Same Kind
of Different As Me, which was scored in Slovakia.
The
American Federation of Musicians of the United States and
Canada, a bargaining representative for musicians, alleged
breach of Article 3 of the Basic Theatrical Motion Picture
Agreement of 2010, which required signatory movie studios to
score domestically, with AFM musicians, any motion picture
that the studios produced domestically. Paramount contended
that Article 3 did not apply because it did not produce
SKODAM.
The
panel held that the district court misinterpreted Article 3
to apply only if a signatory producer employed the cast and
crew shooting the picture. The panel concluded that the Basic
Agreement was a labor agreement involving scoring musicians,
and Article 3 functioned as a work preservation provision
that dictated when a signatory has to hire those musicians.
Therefore, Article 3 applied when a signatory studio produced
a motion picture and had authority over the hiring and
employment of scoring musicians. Whether a studio also
employed the cast and crew was not relevant to Article 3. The
panel held that, on the summary judgment record, it was a
disputed question of fact whether Paramount produced
SKODAM and had sufficient authority over the hiring
of scoring musicians such that Article 3 applied.
The
panel rejected Paramount's affirmative defense that
Article 3 violated the National Labor Relations Act's
"hot cargo" provision, which prohibits an employer
from entering into an agreement to cease or refrain from
dealing in the products of another employer or to cease doing
business with any other person. Paramount asserted that
AFM's suit to enforce Article 3 violated the hot cargo
provision because AFM's tactical objective was to force
SKODAM Films, a neutral employer, to employ AFM musicians.
The panel held that the hot cargo provision does not apply to
valid work preservation agreements. The panel's
conclusion that there was a genuine dispute of material fact
whether Paramount had authority over the hiring and
employment of scoring musicians prevented summary judgment on
the hot cargo defense.
Reversing
two of the district court's evidentiary rulings, the
panel held that the district court abused its discretion in
excluding an expert report and an internal Paramount email.
The
panel remanded the case for further proceedings.
OPINION
TASHIMA, Circuit Judge.
Since
at least 1946, major motion picture studios and the
musicians, conductors, and orchestras who score motion
pictures have agreed to a series of collective bargaining
agreements governing the musicians' hiring, wages, and
work conditions when they score a motion picture for a
signatory studio. This case concerns whether Paramount
Pictures breached a recent vintage of those agreements, the
Basic Theatrical Motion Picture Agreement of 2010
("Basic Agreement"). The musicians' bargaining
representative, the American Federation of Musicians of the
United States and Canada ("AFM"), sued Paramount -
a signatory to the Basic Agreement - after the motion picture
Same Kind of Different As Me
("SKODAM") was scored in Slovakia. AFM
alleged that Paramount breached its obligation under Article
3 of the Basic Agreement to score domestically, with AFM
musicians, any motion picture that it produces domestically.
Paramount moved for summary judgment, contending that Article
3 did not apply because Paramount did not produce
SKODAM.
The
district court granted the motion. First, the court concluded
that a studio produces a motion picture when the studio
"makes" or "shoots" the principal
photography. Second, the court concluded that under Article
3, a signatory studio that "produces" a motion
picture has to score a motion picture domestically only when
it employs the cast and crew shooting the picture. Because
there was no evidence that Paramount employed anyone shooting
the picture, the court concluded that as a matter of law,
Paramount did not breach the Basic Agreement.
We
reverse. The district court misinterpreted Article 3 to apply
only if a signatory Producer employs the cast and crew
shooting the picture. The Basic Agreement is a labor
agreement involving scoring musicians, and Article 3
functions as a work preservation provision that dictates when
a signatory has to hire those musicians. Therefore, Article 3
applies when a signatory studio produces a motion picture and
has authority over the hiring and employment of scoring
musicians. Whether a studio also employs the cast and crew is
not relevant to Article 3. On the summary judgment record, it
is a disputed question of fact whether Paramount produced
SKODAM and had sufficient authority over the hiring
of scoring musicians such that Article 3 applied. We also
reject Paramount's affirmative defense that Article 3
violates the National Labor Relation Act's
("NLRA") "hot cargo" prohibition, and
reverse two of the district court's evidentiary rulings.
Background
I.
Factual Background
AFM is
a labor union that represents approximately 80, 000
professional musicians in the United States and Canada,
including those who score motion pictures. The
"scoring" of motion pictures refers both to the
recording of music sound track for motion pictures and music
preparation work, such as copying and
orchestration.[1] Scoring musicians are not salaried
employees of individual production studios; instead,
musicians score motion pictures on a per-picture basis. The
studios usually arrange for the employment of scoring
musicians indirectly. In a "fee deal" arrangement,
the studio hires a music contractor, who hires the musicians.
In a "package deal" arrangement, the studio hires
the composer and provides him or her a lump sum to hire the
musicians, which the composer usually does through a music
contractor.
A. The
Basic Agreement
For
decades, AFM has negotiated a series of collective bargaining
agreements with major motion picture studios, represented in
negotiations by the Alliance of Motion Picture and Television
Producers ("AMPTP"). Paramount has been party to
the agreements since at least 1964. At the time of
SKODAM's production, the collective bargaining
agreement at issue in this lawsuit - the Basic Agreement -
was in effect.
The
Basic Agreement enumerates wage, benefits, and working
conditions requirements for AFM musicians hired to score
motion pictures. For example, the Basic Agreement establishes
when musicians receive days off, requires the signatory
Producers[2] to pay into a musician health plan, and
establishes wage scales for various covered employees.
Article 1 of the Basic Agreement, titled "Scope of
Agreement," provides:
This Agreement shall be applicable to the classifications of
employees listed in the "Wage Scales, Hours of
Employment and Working Conditions" attached hereto, and
also to all conductors, featured instrumental musicians and
orchestras, employed by the Producer in the State of
California or elsewhere in the United States and Canada and
whose services are rendered in connection with the production
of theatrical motion pictures.
Article
3 of the Basic Agreement - the provision central to this case
- 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." Article 3 has
been in the Basic Agreement for at least 50 years and has
been a point of contention in negotiations.
B.
Same Kind of Different As Me
The
instant dispute arises from the making of the motion picture
Same Kind of Different As Me. Ron Hall, who had
authored a book of the same title, developed the
SKODAM screenplay along with Alex Foard and Michael
Carney, who would become the picture's director. In 2014,
the screenwriters and Darren Moorman formed SKODAM Films,
LLC, in order to produce SKODAM. Moorman raised
money and reached out to potential partners, including
Disruption Entertainment ("Disruption"), which was
run by individual producer Mary Parent. Parent showed
interest in SKODAM and told Moorman that she would
ask Paramount for its response to the project.
1.
Paramount and Disruption Memorandum of Agreement
At the
time that SKODAM Films approached Disruption, Paramount and
Disruption had a Memorandum of Agreement ("MOA")
related to Parent's producing services. The MOA was a
"first look" agreement that required Parent to
share with Paramount any motion picture projects under her
control or that she was considering acquiring, so that
Paramount could determine whether to produce the motion
picture. The MOA provided, "It is the essence of this
Agreement that during the Term, [Disruption's] producing
services in connection with theatrical motion pictures shall
be exclusive to [Paramount]." If Paramount passed on a
project, Parent could shop that project to other motion
picture studios. In exchange, Paramount paid Disruption an
overhead contribution toward expenses and staff salaries and
paid Parent a per-picture producing fee. Disruption employees
also kept office space at Paramount and had Paramount email
addresses. During the term of the MOA, Parent worked on
several motion pictures with Paramount and several with other
studios.
After
Parent's conversation with Moorman, Disruption contacted
Paramount in the summer 2014. Paramount executives commented
on two versions of the SKODAM script and projected
the motion picture's potential revenue. Paramount also
...