Advocates for Labor and Progressive Institutions

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Musicians succeed on appeal, reversing summary judgment in complex contract dispute

September 10, 2018

In a significant opinion at the intersection of labor law and the interpretation of collective-bargaining agreements, the United States Court of Appeals for Ninth Circuit reversed a district court ruling granting summary judgment to Paramount Pictures Corporation on a claim filed by the American Federation of Musicians (“AFM”).  American Federation of Musicians of the United States and Canada v. Paramount Pictures Corp., 903 F.3d 968 (9th Cir. 2018).

The AFM sued Paramount for breach of the parties’ collective-bargaining agreement after the score for the 2017 motion picture Same Kind of Different as Me was produced by non-AFM represented musicians in Bratislava, Slovakia. The AFM contended that Paramount breached a provision of the CBA that required films to be scored in the United States or Canada whenever a signatory producer produces a film in the United States or Canada. The district court granted summary judgment to Paramount after finding that Paramount did not employ the cast, crew, or musicians hired to make the film.

On appeal, the Ninth Circuit disagreed with the district court’s reading of the CBA and held that producers were required to score films in the United States or Canada when a signatory studio produced a motion picture and had authority over the hiring and employment of scoring musicians. The court held that the employment of the cast and crew was irrelevant to this inquiry. The Ninth Circuit also rejected Paramount’s affirmative defense that AFM’s efforts to enforce the CBA 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. The court held that the CBA provision could be found to be a valid work-preservation provision in light of disputed evidence of Paramount’s authority to hire and control the employment of musicians on the film. Finally, the Ninth Circuit held that the district court abused its discretion in excluding two key pieces of evidence from the summary judgment record.

Bredhoff & Kaiser represented the AFM before the court of appeals and the district court.