Bloomer Girl Revisited or How to Frame an Unmade Picture

Columbia Law School, Center for Law and Economic Studies, Working Paper No. 141

32 Pages Posted: 21 Oct 1998

Multiple version iconThere are 2 versions of this paper

Date Written: September 1998

Abstract

The standard analysis of Parker v. Twentieth Century Fox follows the court in focusing on whether the substitute employment offered Shirley MacLaine was "different and inferior" from that which she had initially contracted for. That, this paper argues, was the wrong question. The court managed to produce the right outcome, but through convoluted reasoning that failed to recognize the essential feature of the contract. The contract had a "pay-or-play" provision by which the studio, in effect, purchased an option on her time; they would pay her to be ready to make a particular film, but they made no promise to actually use her in making the film. Cancellation did not entail breach, and, therefore, it was unnecessary to ask whether she had failed to mitigate.

The paper traces the case through the courts, showing how the attention paid the pay-or-play feature declined. It then analyzes the economics of the pay-or-play clause. The clause gives the studio an option, giving it the flexibility to adapt or to abandon a project. The pay-or-play clause is a nuanced balancing of the studio's need for flexibility against the artist's reliance.

JEL Classification: K12, L14

Suggested Citation

Goldberg, Victor Paul, Bloomer Girl Revisited or How to Frame an Unmade Picture (September 1998). Columbia Law School, Center for Law and Economic Studies, Working Paper No. 141, Available at SSRN: https://ssrn.com/abstract=129528 or http://dx.doi.org/10.2139/ssrn.129528

Victor Paul Goldberg (Contact Author)

Columbia Law School ( email )

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