Almost no area of law is as litigious as the interpretation of contracts. Strict recording of every point discussed by the parties is helpful in making sure all aspects of the agreement have been included. The less specific the contract language, the more court time is needed to hash out what was intended by the parties. The attorney involved in the original drafting of the document is charged with the responsibility of capturing, in a snapshot moment in time, the parties’ agreements to do, give and refrain from doing certain things in their contractual relationship. If any of those understandings are discussed but not memorialized in the drafting of the contract, they may not be considered in the interpretation of the written agreement. Basic contract law tells you that any part of the discussion that does not end up in writing will be construed as “dehors” or outside of the contract, and cannot alter the written words. Most contracts add the boilerplate clause that the contract includes the parties’ entire agreement, which strengthens the interpretation that the contract is complete within its “four corners”.

Contracts drafted in rapidly changing areas such as the media and entertainment industry may detail the seemingly full outlines of the agreement, but the parties may later find that the court construes the language and provisions to exclude new formats, delivery systems, methods and contraptions not known or invented yet. James Brown, the Godfather of Soul, found that out the hard way with the employment contract he signed for his performance in the televised T.A.M.I. Awards in 1965. The contract was found by a court to be broad enough to include uses that were not invented or even imagined at that time, including sales of the program to the public in the home theater market for Beta and VHS tapes. The case came about mainly from the exploitation of a T.A.M.I. footage clip by its use in the 1991 movie, “The Commitments”, which featured James Brown’s performance on a television set watched by the characters. The contract included perpetual rights of exploitation of all parts of the performance including “all or any part of your acts, poses, plays and appearances of every kind and nature made or done by you … all instrumental, musical or sound effects produced by you, made or done by you in connection with the Performances and your services hereunder”, and the right to “exhibit, transmit, reproduce, distribute, broad cast and exploit … or the advertising or exploitation thereof, in and by all media and means whatsoever.” The contract also gave the TAMI Show producers “the right to use and display, and to license others to use and display, your name and likeness for advertising or publicizing the Performance in conjunction with and so called ‘commercial tie-ups”. Mr. Brown asserted that the phrase “in connection with” did not allow the performance in the T.A.M.I. Show to be used in separate contexts such as a full-length motion picture, but only in the publication and exploitation of the full show itself. The court pointed to the language allowing “portions” of the performance to be used The only use that was found to be prohibited by the contract were product endorsements from the footage, which Mr. Brown had a longstanding policy against. The language allowing “perpetual use … in all media and means whatsoever” was construed to allow use extending to media developed thereafter, even if not foreseen.