Author: Zimmerman, Jory Bard

Publication Year: 1985

Media Type: Report

Summary:

This article discusses the use in the and in the United Kingdom of contractual negative covenants as the means employers use to enforce by injunction their right to exclusivity. Contractual negative covenant is defined as the creative person will perform for no one else during the contract term without written permission.

Abstract:

This article discusses the use in the and in the United Kingdom of contractual negative covenants as the means employers use to enforce by injunction their right to exclusivity. Contractual negative covenant is defined as the creative person will perform for no one else during the contract term without written permission.

At the heart of most entertainment industry relationships is the employer's unilateral desire for exclusive rights to the creative person's personal services. Written entertainment contracts create an interdependence between the industry, which takes the risk of investing in personal services conditioned upon exclusivity as the key to prosperity, and the creative person, who needs the industry to promote his or her talent.

Unilateral exclusivity is the industry's tool for reducing the risk of investing in the yet unknown talent of the creative person. Exclusivity is a creature of contract resulting from the superior bargaining power of the industry in negotiating and enforcing the contract. Unilateral exclusivity of personal services is a declaration of mine and mine only by the recording company, personal manager, film company, theatre owner, television station, and other employers of creative persons. These entities depend on and negotiate for all enforceable contractual rights of exclusive control over the services of the creative person.

CONTENTS
Historical perspective.
Unilateral exclusivity in the recording industry.
The unique and extraordinary standard.
Negative covenants enforced by injunction.
The criteria for a preliminary injunction in New York.
The $6,000 statutory threshhold for an injunction in California.
The use of negative covenants in the United Kingdom.
Alternative remedies for the breach of a negative covenant.
The key to unilateral exclusivity is the negotiation of the contract.

Arts & Intersections:

Categories: Artists-Resources for