1. You have three (3) hours to complete this exam.

2. THIS IS AN OPEN BOOK, OPEN MATERIALS EXAM. You may use any written notes, books or other materials to assist you in responding to the questions.

3. There are two (2) essay questions on this exam. Each question is worth fifty (50) points. Answer each question as fully as you can, citing any appropriate cases, industry standards, and statutes that are relevant.

4. You are not required to spend the entire time working on the exam - the average time for completion is between two and three hours. You should outline your response to each question, before writing the response. It is recommended that you spend one-third of the time on each question creating your outline, and the remainder of your time writing your answer. For example, if you spend 1.5 hours per question, devote 30 minutes to the outline, and 60 minutes writing the answer.

5. Please write your responses in the blue books provided to you. Write only on one side of the page and double-space your work, written or typed. Please write legibly. If it is not possible to read your response to a question, your grade will be adversely affected.

6. Write you exam number on your exam envelope, at the top of this exam question packet and your used blue books. Do not use your name, student ID number or Social Security Number on any exam materials.

7. At the conclusion of the exam, return all exam materials to the exam envelope and submit it to the proctor. Do not seal the envelope. Students who do not return all exam materials at the end of the exam may not be graded.

GOOD LUCK!

QUESTION NO. 1 (50 Points)

An attorney you know, Judy Zamorah, asks for your opinion of the following situation she is in. She was retained by San Francisco based Soul Gem Productions to assist in the negotiations for the life rights of famous actor Jack Nicholson, who lives in Los Angeles. Soul Gem plans to film the controversial story that Jack Nicholson’s true parents were his own sister, June Nicholson, and Don Rose, a stranger she had a brief romance with. Soul Gem is going to claim that this is the true story of Nicholson’s birth, instead of the often reported birth story, that his parents were Ethel and John Nicholson of New Jersey. Soul Gem intends to spice up the story by adding claims that June was underage when she had her affair with Don, and that Don was an alcoholic and was physically abusive to June. Soul Gem has no facts to support these last claims, but feels that they are entitled to add this kind of information under the theory of “dramatic license”. Nicholson took a liking to Judy, and asked her whether she thought the Soul Gem project was legal, or whether he or his family members or heirs, who deny all aspects of this story, could sue. Judy advised him that as a public figure he had no basis for suit against Soul Gem and urged him to drop any claims, and instead to sign a life rights agreement she had prepared granting Soul Gem the right to go forward with Nicholson’s life story, as detailed above. Now Judy is having second thoughts about her conduct and asks you the following questions:

1. Does she have any liability for the way in which she has handled this situation? If so, what claims may be filed against her, and who may file those claims? What defenses to the claims are available to her, and what is the likely outcome of any litigation arising from these claims?
2. Assuming Soul Gem Productions goes forward with their planned Nicholson documentary, do they have any liability exposure? Who could assert claims against Soul Gem, and what would those claims be? What defenses are available to Soul Gem, and what is the likely outcome of the claims asserted?

QUESTION NO. 2 (50 Points)

Part One

You represent Norrin Radd, a popular new singer/songwriter recently signed to a nine (9) year joint recording and publishing contract with Arista Records. Arista assigned Jim Thanos to serve as producer for Radd’s first record. The recording contract between Arista and Radd requires Radd to deliver a commercially satisfactory record to Arista by December 31, 2003. Radd went into the studio in August and delivered his record to Thanos on September 1st. Thanos rejected the record, sending it back to Radd with the note, “Is this the best you can do?” Radd edited and reworked the record three times, always getting the same rejection and note from Thanos.

Radd wants to terminate the contract due to his conflict with Thanos. Arista threatens to sue him for breach if he attempts to terminate. Radd asks you whether he can terminate the contract based on Thanos’ conduct, and what are the strengths and weaknesses of each side of this dispute. What is your advice?

Part Two

Radd also asks you whether the following terms of the recording and publishing agreement he signed with Arista are within record and publishing industry standards, and if not, whether the terms would provide a basis for breaching the contract. If the terms are not industry standard, but do not provide a basis for breach, Radd asks what the relevant industry standard is, and whether it is likely he could renegotiate these terms to bring them closer to the industry standard. What is your advice?

The terms are:

1. Ten year contract, with 3 records to be recorded and delivered each year.
2. Recording budget of $4,000 per record.
3. All record income is cross-collateralized.
4. All costs of production, pressing, distribution and marketing are advanced by Arista, and recoupable before royalties are paid to Radd.
5. Radd receives a $25,000 advance, and Arista has to recoup 200% of the advance before it pays royalties.

1. The contract provides what it calls a “co-publishing” deal, in which Radd and Arista each keep 50% of the income derived from the exploitation of the songs covered by the agreement.
2. All publishing income is cross-collateralized with recording income and expenses.
3. The contract is for a period of ten years, and all songs written during that time period are subject to the agreement.

END OF EXAM