(CN) – A panel of Ninth Circuit judges seemed highly skeptical Thursday of Paramount Pictures’ claim that it had no control over whether the music producer it hired for a movie released in October chose a composer who worked with musicians in the U.S. – a major condition of Paramount’s agreement with the musicians’ union.
The Basic Theatrical Motion Picture Agreement of 2010 requires nearly a dozen major movie houses, including Paramount, to hire members of the United States and Canada to score movies.
But in 2015, an orchestra in Slovakia recorded the score for the Paramount movie “Same Kind of Different as Me.” Released in October, “Same Kind” is a poorly reviewed feel-good movie starring Greg Kinnear as an art dealer who befriends a homeless man to save his marriage to his wife, played by Renee Zellweger.
American Federation of Musicians of the United States and Canada sued Paramount in June 2015, claiming it breached the parties’ collective bargaining agreement.
In its complaint, the union said the movie was being “hastily scored” outside the U.S. just weeks after the union had sued Paramount for the same reasons over three other movies.
One year later, U.S. District Judge Dolly M. Gee tossed the lawsuit, finding that the Slovakian orchestra members were not technically employees of Paramount, since Paramount had hired production company Skodam Films to do the bulk of the work making and shooting the movie. Skodam, in turn, had hired a music composer who had hired the orchestra.
The collective bargaining agreement does not describe scenarios with co-producers or more than one producer, Gee wrote. And under the agreement, the single producer must also be the employer of the musicians for them to be covered by the agreement.
The union appealed that decision, and a three-judge panel heard arguments on the case Thursday.
Arguing for the union, attorney Robert Alexander said that the district court had based its ruling on an inaccurate assessment of the collective bargaining agreement.
“The reason that’s an improper interpretation is that the whole purpose is to require Paramount to employ union musicians when it would not otherwise do so,” Alexander told the panel. “Paramount easily could have insisted that the composer that is chosen for this work be one that assigns musicians in the United States.”
Paramount’s lawyer, Adam Levin with Mitchell Silbergerg & Knupp, argued that Paramount was not a producer under the terms of the union agreement and “did not control any aspect of this production.”
Under the agreement, Levin said the term “producer” applies only to activities that involve a movie camera, and doesn’t apply to things like setting up funding for a movie or securing a set.
“‘Produced’ must have a very close nexus to the operation of a camera,” Levin said. “That is what the agreement is contemplating.”
Circuit Judge Marsha Berzon took issue with that logic.
“So you’re basically saying under this agreement there is no co-production,” Berzon said. “You can’t have more than one producer. So it’s contemplating a world that doesn’t exist, is what you’re saying. It’s just completely antiquated.”
Levin responded, “It doesn’t say there can be another producer. Furthermore, the verb ‘producing’ means to operate the cameras to put images on film.”
Judge Berzon seemed to scoff at that.
“Let’s say that I think those are both exceedingly weak arguments,” Berzon said. “Although I don’t think the other side’s argument is a slam dunk, the way you’re going at this just seems not to be there.”
Levin then said that, despite Paramount’s contractual right to approve or disapprove the composer chosen by the production company it hired, Paramount had no control over whether that composer hired musicians within the United States.
Judge Berzon said that didn’t get Paramount off the hook.
“If they had known that Skodam Films was scoring outside the United States, they should have said no, we disapprove?” Berzon said. “Or could have said, no because we have an obligation to have it scored in the United States. Could it have done that?”
“No, your honor, because there is no evidence that Paramount could have exercised any such control over Skodam Films,” Levin said. “The contract contemplates that Paramount could approve or disapprove the selection of the composer. But that’s a far stretch from approving or disapproving of the selection to do the scoring work inside or outside of the United States.”
“I’m sorry,” Berzon said. “I don’t understand that.”
At the end of the hearing, union attorney Alexander told the judges that Paramount was mounting its highly semantic defense because it had a good financial reason to do so.
“Use of music that is scored under the contract requires additional payments which would be entirely on Paramount,” Alexander said. “So it’s in its interest that the music not be scored. It’s in its interest to offshore the music.”
The panel did not indicate when it would issue a ruling.