American Fed'n of Musicians v. Paramount Pictures Corp. , 903 F.3d 968 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AMERICAN FEDERATION OF No. 16-55996
MUSICIANS OF THE UNITED
STATES AND CANADA, D.C. No.
Plaintiff-Appellant, CV 15-4302 DMG
v.
OPINION
PARAMOUNT PICTURES
CORPORATION,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Dolly M. Gee, District Judge, Presiding
Argued and Submitted February 8, 2018
San Francisco, California
Filed September 10, 2018
Before: A. Wallace Tashima, Marsha S. Berzon,
and Morgan Christen, Circuit Judges.
Opinion by Judge Tashima
2 AFM V. PARAMOUNT PICTURES
SUMMARY*
Labor Law
The panel reversed the district court’s grant of summary
judgment in favor of defendant Paramount Pictures Corp. in
an action brought under § 301 of the Labor Management
Relations Act, alleging breach of a collective bargaining
agreement in connection with the motion picture Same Kind
of Different As Me, which was scored in Slovakia.
The American Federation of Musicians of the United
States and Canada, a bargaining representative for musicians,
alleged breach of Article 3 of the Basic Theatrical Motion
Picture Agreement of 2010, which required signatory movie
studios to score domestically, with AFM musicians, any
motion picture that the studios produced domestically.
Paramount contended that Article 3 did not apply because it
did not produce SKODAM.
The panel held that the district court misinterpreted
Article 3 to apply only if a signatory producer employed the
cast and crew shooting the picture. The panel concluded that
the Basic Agreement was a labor agreement involving scoring
musicians, and Article 3 functioned as a work preservation
provision that dictated when a signatory has to hire those
musicians. Therefore, Article 3 applied when a signatory
studio produced a motion picture and had authority over the
hiring and employment of scoring musicians. Whether a
studio also employed the cast and crew was not relevant to
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
AFM V. PARAMOUNT PICTURES 3
Article 3. The panel held that, on the summary judgment
record, it was a disputed question of fact whether Paramount
produced SKODAM and had sufficient authority over the
hiring of scoring musicians such that Article 3 applied.
The panel rejected Paramount’s affirmative defense that
Article 3 violated the National Labor Relations Act’s “hot
cargo” provision, which prohibits an employer from entering
into an agreement to cease or refrain from dealing in the
products of another employer or to cease doing business with
any other person. Paramount asserted that AFM’s suit to
enforce Article 3 violated the hot cargo provision because
AFM’s tactical objective was to force SKODAM Films, a
neutral employer, to employ AFM musicians. The panel held
that the hot cargo provision does not apply to valid work
preservation agreements. The panel’s conclusion that there
was a genuine dispute of material fact whether Paramount
had authority over the hiring and employment of scoring
musicians prevented summary judgment on the hot cargo
defense.
Reversing two of the district court’s evidentiary rulings,
the panel held that the district court abused its discretion in
excluding an expert report and an internal Paramount email.
The panel remanded the case for further proceedings.
4 AFM V. PARAMOUNT PICTURES
COUNSEL
Robert Alexander (argued), Jeffrey R. Freund, Abigail V.
Carter, and Adam Bellotti, Bredhoff & Kaiser PLLC,
Washington, D.C., for Plaintiff-Appellant.
Adam Levin (argued), Emma Luevano, and Emily F. Evitt,
Mitchell Silberberg & Knupp LLP, Los Angeles, California,
for Defendant-Appellee.
OPINION
TASHIMA, Circuit Judge:
Since at least 1946, major motion picture studios and the
musicians, conductors, and orchestras who score motion
pictures have agreed to a series of collective bargaining
agreements governing the musicians’ hiring, wages, and work
conditions when they score a motion picture for a signatory
studio. This case concerns whether Paramount Pictures
breached a recent vintage of those agreements, the Basic
Theatrical Motion Picture Agreement of 2010 (“Basic
Agreement”). The musicians’ bargaining representative, the
American Federation of Musicians of the United States and
Canada (“AFM”), sued Paramount – a signatory to the Basic
Agreement – after the motion picture Same Kind of Different
As Me (“SKODAM”) was scored in Slovakia. AFM alleged
that Paramount breached its obligation under Article 3 of the
Basic Agreement to score domestically, with AFM musicians,
any motion picture that it produces domestically. Paramount
moved for summary judgment, contending that Article 3 did
not apply because Paramount did not produce SKODAM.
AFM V. PARAMOUNT PICTURES 5
The district court granted the motion. First, the court
concluded that a studio produces a motion picture when the
studio “makes” or “shoots” the principal photography.
Second, the court concluded that under Article 3, a signatory
studio that “produces” a motion picture has to score a motion
picture domestically only when it employs the cast and crew
shooting the picture. Because there was no evidence that
Paramount employed anyone shooting the picture, the court
concluded that as a matter of law, Paramount did not breach
the Basic Agreement.
We reverse. The district court misinterpreted Article 3 to
apply only if a signatory Producer employs the cast and crew
shooting the picture. The Basic Agreement is a labor
agreement involving scoring musicians, and Article 3
functions as a work preservation provision that dictates when
a signatory has to hire those musicians. Therefore, Article 3
applies when a signatory studio produces a motion picture
and has authority over the hiring and employment of scoring
musicians. Whether a studio also employs the cast and crew
is not relevant to Article 3. On the summary judgment
record, it is a disputed question of fact whether Paramount
produced SKODAM and had sufficient authority over the
hiring of scoring musicians such that Article 3 applied. We
also reject Paramount’s affirmative defense that Article 3
violates the National Labor Relation Act’s (“NLRA”) “hot
cargo” prohibition, and reverse two of the district court’s
evidentiary rulings.
6 AFM V. PARAMOUNT PICTURES
BACKGROUND
I. Factual Background
AFM is a labor union that represents approximately
80,000 professional musicians in the United States and
Canada, including those who score motion pictures. The
“scoring” of motion pictures refers both to the recording of
music sound track for motion pictures and music preparation
work, such as copying and orchestration.1 Scoring musicians
are not salaried employees of individual production studios;
instead, musicians score motion pictures on a per-picture
basis. The studios usually arrange for the employment of
scoring musicians indirectly. In a “fee deal” arrangement, the
studio hires a music contractor, who hires the musicians. In
a “package deal” arrangement, the studio hires the composer
and provides him or her a lump sum to hire the musicians,
which the composer usually does through a music contractor.
A. The Basic Agreement
For decades, AFM has negotiated a series of collective
bargaining agreements with major motion picture studios,
represented in negotiations by the Alliance of Motion Picture
and Television Producers (“AMPTP”). Paramount has been
party to the agreements since at least 1964. At the time of
SKODAM’s production, the collective bargaining agreement
at issue in this lawsuit – the Basic Agreement – was in effect.
1
As defined in the Basic Agreement, orchestration is “the art of
assigning, by writing in the form of an orchestra score, the various voices
of an already written composition complete in form.”
AFM V. PARAMOUNT PICTURES 7
The Basic Agreement enumerates wage, benefits, and
working conditions requirements for AFM musicians hired to
score motion pictures. For example, the Basic Agreement
establishes when musicians receive days off, requires the
signatory Producers2 to pay into a musician health plan, and
establishes wage scales for various covered employees.
Article 1 of the Basic Agreement, titled “Scope of
Agreement,” provides:
This Agreement shall be applicable to the
classifications of employees listed in the
“Wage Scales, Hours of Employment and
Working Conditions” attached hereto, and
also to all conductors, featured instrumental
musicians and orchestras, employed by the
Producer in the State of California or
elsewhere in the United States and Canada
and whose services are rendered in connection
with the production of theatrical motion
pictures.
Article 3 of the Basic Agreement – the provision central to
this case – provides: “All theatrical motion pictures produced
by the Producer in the United States or Canada, if scored,
shall be scored in the United States or Canada.” Article 3 has
been in the Basic Agreement for at least 50 years and has
been a point of contention in negotiations.
2
The signatory studios are referred to throughout the Basic
Agreement as “Producers.” To be clear: the term “Producer” is distinct
from the term “produced” in Article 3. Thus, it is not the case that a
Producer – a signatory – “produces” within the meaning of Article 3
anytime a Producer is involved with a motion picture. When a Producer
“produces” is disputed, but the parties do not dispute that Paramount is a
“Producer” as a signatory to the Basic Agreement.
8 AFM V. PARAMOUNT PICTURES
B. Same Kind of Different As Me
The instant dispute arises from the making of the motion
picture Same Kind of Different As Me. Ron Hall, who had
authored a book of the same title, developed the SKODAM
screenplay along with Alex Foard and Michael Carney, who
would become the picture’s director. In 2014, the
screenwriters and Darren Moorman formed SKODAM Films,
LLC, in order to produce SKODAM. Moorman raised money
and reached out to potential partners, including Disruption
Entertainment (“Disruption”), which was run by individual
producer Mary Parent. Parent showed interest in SKODAM
and told Moorman that she would ask Paramount for its
response to the project.
1. Paramount and Disruption Memorandum of
Agreement
At the time that SKODAM Films approached Disruption,
Paramount and Disruption had a Memorandum of Agreement
(“MOA”) related to Parent’s producing services. The MOA
was a “first look” agreement that required Parent to share
with Paramount any motion picture projects under her control
or that she was considering acquiring, so that Paramount
could determine whether to produce the motion picture. The
MOA provided, “It is the essence of this Agreement that
during the Term, [Disruption’s] producing services in
connection with theatrical motion pictures shall be exclusive
to [Paramount].” If Paramount passed on a project, Parent
could shop that project to other motion picture studios. In
exchange, Paramount paid Disruption an overhead
contribution toward expenses and staff salaries and paid
Parent a per-picture producing fee. Disruption employees also
kept office space at Paramount and had Paramount email
AFM V. PARAMOUNT PICTURES 9
addresses. During the term of the MOA, Parent worked on
several motion pictures with Paramount and several with
other studios.
After Parent’s conversation with Moorman, Disruption
contacted Paramount in the summer 2014. Paramount
executives commented on two versions of the SKODAM
script and projected the motion picture’s potential revenue.
Paramount also met with Carney and eventually decided to
become involved with SKODAM.
2. Co-Financing and Distribution Agreement
On October 16, 2014, Paramount and SKODAM Films
executed a “Co-Financing and Distribution Agreement.” The
Co-Financing and Distribution Agreement referred to
SKODAM Films as “Producer” and Paramount as
“Paramount” and established the parties’ respective
obligations in connection with “the production, distribution,
and co-financing” of SKODAM. Paramount committed to
finance 40% of SKODAM’s production and budget, while
SKODAM Films would contribute 60%. Paramount received
the exclusive right to distribute the picture and the
soundtrack, and a 40% copyright to “reflect[] the status of
Paramount and Producer as co-authors and co-owners of the
work.” Paramount also received a presentation credit –
“Paramount Pictures presents” – on the motion picture, while
Parent and the individual members of SKODAM Films
received “producer” credits.
The Co-Financing and Distribution Agreement included
several conditions precedent to Paramount’s performance,
two relevant to this case. First, SKODAM Films was
required to contract with Disruption for Parent’s producing
10 AFM V. PARAMOUNT PICTURES
services. Second, Paramount had to approve “the screenplay
and the budget prepared by [SKODAM Films],” the director,
and lead cast members. SKODAM Films could not begin
principal photography until Paramount gave the latter two
approvals.
3. SKODAM Films and Disruption Agreement
In satisfaction of the first condition precedent in the Co-
Financing and Distribution Agreement, SKODAM Films
executed an agreement with Dreamchaser, Inc. – an entity
associated with Disruption and Parent – for Parent’s
producing services. SKODAM Films gave Parent the right to
“mutually approve all material creative decisions” in
connection with SKODAM. The agreement further provided
that if Parent and SKODAM Films disagreed about those
material creative decisions, “[Paramount’s] decision shall
control.”
4. Principal Photography on SKODAM
With the foregoing agreements in place, principal
photography for SKODAM took place in Jackson,
Mississippi, between October and December 2014. Moorman
selected the shooting dates and locations, and spent
“hundreds of hours” arranging the shooting of every scene.
SKODAM Films, via Moorman, also negotiated agreements
with labor unions like the Directors Guild of America and
SAG-AFTRA. Although they were not on site during
principal photography, multiple Paramount employees
received and reviewed dailies – the daily film output – from
SKODAM Films. One Paramount executive gave the
SKODAM director suggestions relating to the “pace” of
shooting, as well as feedback on a few specific scenes and
AFM V. PARAMOUNT PICTURES 11
one actor’s performance. At Paramount’s behest, SKODAM
Films consulted with a production professional prior to an
aerial shoot in Texas.
AFM learned about SKODAM and, in December 2014,
sent Paramount a letter stating that the union’s musicians
“look[ed] forward to the scoring” of SKODAM as the picture
entered post-production.3 “Post-production” refers to
activities occurring after the motion picture has been shot,
such as editing and scoring. Nothing in the record indicates
that Paramount responded to AFM’s letter.
5. Composer Agreement
In February 2015, after principal photography had
concluded, composer John Paesano contracted with
SKODAM Films to score SKODAM (the “Composer
Agreement”). The SKODAM director, Carney, selected
Paesano. In the Composer Agreement, Paesano warranted
that the SKODAM score would not be subject to the
“jurisdiction of any labor organization (e.g., [AFM]).” Per
the contract, Paesano’s composer fee included money to hire
musicians, making the arrangement a “package deal.”
Paramount reviewed and approved the Composer Agreement.
Paesano composed the score between January and April
2015. Around that time, after a test screening of the picture
(which did not yet include Paesano’s score), Paramount’s
chief music executive called Paesano to have what the
composer described as a “general conversation” about the
music for the picture. Once the score was composed, Paesano
3
SKODAM Films is not a signatory to the Basic Agreement and
AFM did not send a similar letter to SKODAM Films.
12 AFM V. PARAMOUNT PICTURES
hired a music contractor, who selected the musicians.
Paesano chose to record the score in Bratislava, Slovakia,
although he monitored the recording remotely from Los
Angeles. That same week, Paesano also recorded two music
soloists in Los Angeles.
II. Procedural Background
A. District Court Proceedings
In June 2015, AFM sued Paramount in federal district
court for breach of contract under § 301 of the Labor
Management Relations Act, 29 U.S.C. § 185(a). AFM’s
complaint alleged that Paramount breached Article 3 of the
Basic Agreement by scoring SKODAM in Slovakia.
Paramount moved for summary judgment, contending that it
had no obligation to score the picture in the United States or
Canada because it did not “produce” the picture under the
terms of Article 3. Paramount also raised the affirmative
defense that AFM’s demand letter violated the “hot cargo”
provision, § 8(e) of the NLRA, 29 U.S.C. § 158(e).
The district court granted Paramount’s motion. First, the
court concluded that the term “produced” in Article 3 is
ambiguous and that, based on extrinsic evidence, a Producer
“produces” a motion picture when it “makes” or “shoots” the
principal photography for a motion picture. The court
determined that there was a genuine dispute of material fact
whether Paramount “produced” SKODAM because, although
SKODAM Films did the bulk of the work, Paramount paid
SKODAM Films during principal photography and reviewed
dailies. Second, the district court concluded that Article 3
does not apply every time a signatory Producer produces a
motion picture. Looking to Article 1, which establishes that
AFM V. PARAMOUNT PICTURES 13
the Basic Agreement applies only to musicians “employed by
the Producer,” the court concluded that Article 3 “covers only
a Producer of a theatrical motion picture who . . . has the
authority to hire and fire employees,” like the cast and crew.
In addition, the Producer must employ, directly or indirectly,
“the employees covered under the [Basic Agreement] during
the making and shooting of a motion picture.” Because there
was no dispute that Paramount did not employ the SKODAM
cast or crew (SKODAM Films did) or the scoring musicians,
Article 3 did not apply. The court thus granted summary
judgment for Paramount. The court did not address
Paramount’s alternative argument that § 8(e), the “hot cargo”
provision, bars AFM’s suit.4 This appeal followed.
B. Standard of Review
The district court had jurisdiction under 28 U.S.C. § 1331and 29 U.S.C. § 185(a), and we have jurisdiction under
28 U.S.C. § 1291. We review de novo both the district
court’s grant of summary judgment for Paramount and its
interpretation of the collective bargaining agreement. See
Alday v. Raytheon Co., 693 F.3d 772, 782 (9th Cir. 2012).
We review for abuse of discretion the district court’s
exclusion of evidence from the summary judgment record.
Reed v. Lieurance, 863 F.3d 1196, 1204 (9th Cir. 2017).
4
The district court initially issued its order under seal, and issued a
redacted order two weeks later. On appeal, the parties filed two versions
of their briefs; an unredacted set under seal and a redacted set on the
public docket.
14 AFM V. PARAMOUNT PICTURES
DISCUSSION
I. Evidentiary Rulings
First, AFM challenges two of the district court’s
evidentiary rulings. Paramount objected to an expert report
and an internal Paramount email that AFM included as part
of its opposition to Paramount’s summary judgment motion.
The district court sustained both objections. In each instance,
exclusion was legal error and therefore an abuse of discretion.
See United States v. Hinkson, 585 F.3d 1247, 1260 (9th Cir.
2009) (en banc).
A. Paramount email
AFM challenges the district court’s exclusion of an email
that Paramount produced in discovery. In the email,
Paramount employee Christina Toth wrote to two other
Paramount employees that Neil Kohan, a representative of
SKODAM composer Paesano, had reached out to discuss
“union vs. non union recordings.” Toth – whose email
signature indicated that she worked for Randy Spendlove,
President of Motion Picture Music at Paramount – asked the
recipients if, “[p]er Randy,” one of them could call Kohan.
AFM sought to introduce the email to show that Kohan
reached out to Paramount about which musicians to hire.
Paramount objected that the email was not authenticated and
was inadmissible hearsay. The district court sustained the
objection, but did not explain its grounds for exclusion.
Neither of Paramount’s objections withstands scrutiny.
To authenticate evidence, a party must “produce evidence
sufficient to support a finding that the item is what the
proponent claims it is.” Fed. R. Evid. 901(a). “A party ‘need
AFM V. PARAMOUNT PICTURES 15
only make a prima facie showing of authenticity so that a
reasonable juror could find in favor of authenticity or
identification.’” United States v. Estrada-Eliverio, 583 F.3d
669, 673 (9th Cir. 2009) (quoting United States v. Workinger,
90 F.3d 1409, 1415 (9th Cir. 1996)). Paramount contends
that AFM’s failure to elicit deposition testimony about the
email is fatal to its authenticity. However, Paramount itself
produced the email, which includes Toth’s Paramount email
signature and Paramount email address. Given the “contents,
substance . . . [and] other distinctive characteristics of the
item,” Fed. R. Evid. 901(b)(4), plus the fact that it was
produced by Paramount in discovery, a reasonable juror could
find that the email is what AFM claims it is.
The Toth email is also not inadmissible hearsay. First,
Toth’s statements in the email are non-hearsay as opposing
party statements because the email establishes that Toth sent
it in her capacity as a Paramount employee. See Fed. R. Evid.
801(d)(2)(D). Second, Kohan’s statement to Toth, the second
layer of potential hearsay, is not offered for its truth. AFM
states that it included the email to show that Kohan called
Paramount to inquire about the hiring of scoring musicians,
which was relevant to the issues in Paramount’s summary
judgment motion.5 For that reason, Kohan’s statement is
admissible as verbal acts evidence. See Fed. R. Evid. 801(c),
advisory committee’s note. The district court abused its
discretion in excluding the Toth email.
5
In its brief and at oral argument, Paramount could not identify how
AFM was offering Kohan’s statement for its truth. If AFM were offering
Kohan’s statement to show that he “wanted” to talk about which
musicians to hire, the statement would be offered for its truth. But that is
not why AFM seeks to include the email.
16 AFM V. PARAMOUNT PICTURES
B. Expert Report
The district court also excluded an expert report prepared
by Harris Tulchin because “the report itself [was] not
submitted under penalty of perjury.” Tulchin signed the
report, although not under penalty of perjury. Attached to
Tulchin’s expert report was a declaration in which he attested
under penalty of perjury that he prepared the report and
would testify “consistent with [its] conclusions and opinions.”
For purposes of Federal Rule of Civil Procedure 56(c)(4),6
there is no meaningful distinction between an expert report
accompanied by a sworn declaration and an expert report that
is itself sworn. The out-of-circuit cases relied on by the
district court, and cited again by Paramount on appeal, are
easily distinguishable. For example, in Fowle v. C & C Cola,
a Div. of ITT-Continental Baking Co., 868 F.2d 59 (3d Cir.
1989), only the plaintiff’s attorney – not the expert himself –
attested to the veracity of the report. Id. at 67. See also
Provident Life & Accident Ins. Co. v. Goel, 274 F.3d 984,
1000 (5th Cir. 2001) (excluding unsworn expert report where
there was no indication that the expert had attached a sworn
declaration). By contrast, Tulchin swore in a declaration that
he would testify in accordance with the report, which satisfies
the functional concerns behind Rule 56(c)(4) – that Tulchin
is competent to testify to the conclusions and opinions in the
report. The district court thus abused its discretion by
excluding Tulchin’s expert report on the basis that the report
itself was not signed under penalty of perjury.
6
“An affidavit or declaration used to support or oppose a motion must
be made on personal knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent to testify on
the matters stated.” Fed. R. Civ. P. 56(c)(4).
AFM V. PARAMOUNT PICTURES 17
II. Interpretation of the Basic Agreement
Second, AFM challenges the district court’s interpretation
of Article 3 of the Basic Agreement. Article 3 provides: “All
theatrical motion pictures produced by the Producer in the
United States or Canada, if scored, shall be scored in the
United States or Canada.” The parties dispute what it means
for a motion picture to have been “produced by the
Producer.” The district court concluded that a Producer
“produces” a motion picture under Article 3 when it shoots
the principal photography and employs the cast and crew.
The district court erred to the extent that it interpreted Article
3 to apply only if a Producer employs the cast and crew
working on a motion picture. As we explain below, the text
and structure of the Basic Agreement dictate that Article 3
applies if a Producer produces a motion picture and has
authority over the hiring and employment of scoring
musicians.
Federal courts “interpret collective-bargaining agreements
. . . according to ordinary principles of contract law, at least
when those principles are not inconsistent with federal labor
policy.” M & G Polymers USA, LLC v. Tackett, 135 S. Ct.
926, 933 (2015); see also CNH Indus. N.V. v. Reese, 138 S.
Ct. 761, 763 (2018). “Where the words of a contract in
writing are clear and unambiguous, its meaning is to be
ascertained in accordance with its plainly expressed intent.”
Tackett, 135 S. Ct. at 933 (quoting 11 Richard A. Lord,
Williston on Contracts § 30:6, at 108 (4th ed. 2012)). “In so
doing, we interpret written terms in the context of the entire
agreement’s language, structure, and stated purpose.” Alday,
693 F.3d at 782 (alterations, citation, and internal quotation
marks omitted). A contract term is ambiguous only if
“multiple reasonable interpretations exist.” Trs. of S. Cal.
18 AFM V. PARAMOUNT PICTURES
IBEW-NECA Pension Tr. Fund v. Flores, 519 F.3d 1045,
1047 (9th Cir. 2008). If a term is ambiguous, the court may
look to extrinsic evidence to determine the parties’ intentions.
Ariz. Laborers, Teamsters & Cement Masons Local 395
Health & Welfare Tr. Fund v. Conquer Cartage Co. (“Ariz.
Laborers”), 753 F.2d 1512, 1517–18 (9th Cir. 1985); see also
CNH Indus. N.V., 138 S. Ct. at 765. Extrinsic evidence
includes, “for example, the parties’ bargaining history.”
Tackett, 135 S. Ct. at 938 (Ginsburg, J., concurring).
A. The term “produced”
The district court interpreted what it means to “produce”
a motion picture under the Basic Agreement before turning to
whether Article 3 applies any time a Producer “produces” a
motion picture. We take the same two-step approach. The
Basic Agreement does not define “produced,” but other
provisions of the Basic Agreement use “produced” in
connection with motion pictures. For example, Article 1
defines “theatrical motion pictures” as those motion pictures
“produced by means of motion picture cameras, electronic
cameras or devices, tape devices or any combination of the
foregoing or any other means, methods of devices now used
or which may hereafter be adopted.” Under Article 9, a
Producer “agree[s] not to produce, distribute or make use of
16mm film with music sound track produced within the
United States and/or Canada, unless such music sound track
is recorded by live musicians specifically for that picture.”
Both provisions indicate that if one shoots or films a picture
by any of several means, one “produces” a motion picture;
indeed, such a conclusion accords with a common-sense
understanding of how a motion picture goes from script to
screen.
AFM V. PARAMOUNT PICTURES 19
However, Article 3 is ambiguous about the range of
“shooting” actions that “produced” encompasses. Does
Article 3 apply only to the employment of the person holding
a camera or other filming device, as Paramount contends? Or
does Article 3 apply to any entity that takes actions “at all
phases of production” that relate the shooting of a motion
picture, as AFM contends? Because on its face “produced”
is susceptible to multiple reasonable interpretations, we turn
to the parties’ bargaining history.
That extrinsic evidence demonstrates that both AFM and
Paramount negotiators understood “produced” for purposes
of Article 3 to include activities in relation to the shooting of
“principal photography.” For example, an AFM member who
participated in bargaining testified that a motion picture is
produced “where the photography was done” – with
photography meaning “principal photography,” not “second-
unit work” or “establishing stuff.” Paramount’s bargaining
representative had a similar understanding: “[A] simplified
version of [Article 3] is if you shoot your theatrical motion
picture in the US or Canada, then you must score it in the US
or Canada.” Another AMPTP negotiator declared that
“produced” in Article 3 “refers to shooting the motion picture
and the associated tasks, such as hiring cast and crew,
selecting shooting locations, determining a production
schedule, and preparing and monitoring a production budget.”
Finally, AFM’s former general counsel testified that in
negotiations, both AFM and Paramount understood that
“where the place of principal photography took place was, in
fact, the determinant of where it was produced by the
producer” under Article 3.
We therefore agree with the district court that a Producer
“produce[s]” a motion picture for purposes of Article 3 if the
20 AFM V. PARAMOUNT PICTURES
Producer takes actions associated with shooting principal
photography. See Ariz. Laborers, 753 F.2d at 1518 n.9
(“Contrary inferences are not possible where undisputed and
conclusive evidence as to the intent of the parties is before the
court.”).
As the district court suggested, however, Paramount’s
interpretation of “produced” – limited only to the direct
employment of the case and crew – is too narrow. We
conclude below that Article 3 extends to actions associated
with shooting principal photography, including involvement
in hiring, budget, and shooting decisions related to principal
photography, not just direct employment.7
B. Applicability of Article
The district court appeared to conclude that even though
the Basic Agreement relates to the employment of musicians,
Article 3 applies only when a Producer employs the cast and
crew of a motion picture. Paramount urges the same
interpretation. But the Basic Agreement imposes no such
requirement. As we explain below, because the Basic
Agreement relates to the hiring and employment of
musicians, not the cast and crew, Article 3 applies whenever
a Producer produces a motion picture and has authority over
the hiring and employment of scoring musicians.
7
For our purposes, the pertinent question is what “produced” means
under Article 3. We conclude here that an entity “produce[s]” for
purposes of that Article if it is involved in principal photography. We
need not decide whether, under parts of the Basis Agreement other than
Article 3, an entity “produces” or is a “producer” if it is not involved in
principal photography.
AFM V. PARAMOUNT PICTURES 21
A work preservation clause “ha[s] as its objective the
preservation of work traditionally performed by employees
represented by the union.” NLRB v. Int’l Longshoremen’s
Ass’n, AFL-CIO (“ILA I”), 447 U.S. 490, 504 (1980). For
example, a work preservation clause may prevent the
employer from subcontracting work traditionally performed
by the union. See George Day Constr. Co. v. United Bhd. of
Carpenters & Joiners of Am., Local 354, 722 F.2d 1471, 1482
(9th Cir. 1984). Similarly, Article 3 ensures that studios who
produce their motion pictures domestically preserve the
scoring work on those motion pictures for AFM members.
The district court misinterpreted the scope of Article 3.
First, the court’s conclusion that a Producer must employ “the
employees covered under the CBA during the making and
shooting a motion picture” is not tenable. If Article 3 applies
only once a studio has engaged musicians to score a motion
picture, Article 3’s purpose is simply to ensure that those
musicians score the motion picture in the United States. That
interpretation renders Article 3 a practical nullity. See Alday,
693 F.3d at 784 (“As in all contracts, the collective
bargaining agreement’s terms must be construed so as to
render none nugatory and avoid illusory promises.”) (citation
and internal quotation marks omitted). Indeed, Paramount
does not attempt to defend that interpretation on appeal.
Second, the district court’s conclusion that Article 3
applies only if the Producer employs the cast and crew
shooting a picture is not supported by the Basic Agreement.
The district court’s misinterpretation is understandable. By
its terms, the Basic Agreement concerns the hiring and
employment of scoring musicians. Article 1 states that the
Basic Agreement applies to “employees” and “conductors,
featured instrumental musicians[,] and orchestras, employed
22 AFM V. PARAMOUNT PICTURES
by the Producer.” The Basic Agreement sets forth standards
for how a Producer must notify musicians of a day’s
assignment, request overnight work, or request that a
musician use a certain instrument. Those are actions only an
employer can take. But the district court erred in focusing on
whether a producing Producer is employing the cast and crew
to determine whether the Producer could employ musicians.
As Paramount itself explained, scoring occurs in post-
production. It is a process separate from the shooting of a
motion picture (and was separate on SKODAM). Applying
Article 3 only to the entity employing the cast and crew
presumes that just one entity can “produce” a motion picture
and that the same entity controls both production and post-
production. But there is record evidence that both SKODAM
Films and Paramount, to a lesser degree, took actions related
to shooting principal photography. Nowhere does Article 3
contemplate that only one entity produces a motion picture.
Moreover, applying Article 3 only to the employer of the cast
and crew means that, where there are multiple producers, a
signatory could avoid its Basic Agreement obligations by
having a different entity employ the cast and crew.
That does not mean that Article 3 requires that the Basic
Agreement apply anytime a Producer helps shoot principal
photography on a motion picture. Rather, the Basic
Agreement requires that Article 3 necessarily applies only
when a signatory Producer is involved in hiring and
employing musicians. Given the particular way in which
scoring musicians are hired, a motion picture studio may not
directly hire musicians. A composer or music contractor may
directly hire and supervise musicians. The Basic Agreement
makes sense only if the studio with authority over the
composer is the musicians’ employer. After all, the Basic
AFM V. PARAMOUNT PICTURES 23
Agreement is a labor agreement between musicians and
studios, not musicians and composers, and it refers to the
Producer studios as the musicians’ employers.
Notably, the National Labor Relations Board explicitly
addressed the employment status of musicians relative to a
different set of motion picture studios in Independent Motion
Picture Producers Ass’n, 123 N.L.R.B. 1942 (1959). The
Board there concluded that, given the “facts, circumstances,
and bargaining practices prevailing in the motion picture
production industry . . . the independent motion picture
producers are employers of the musicians who score the
music for their pictures within the meaning of the Act,
irrespective of the nature of the supervisory or managerial
authority or other relationship of the orchestra manager,
composer-conductor, or contractor to the musicians.” Id. at
1947. The Board’s logic applies equally here. As Paramount
conceded in its brief: “[i]t remains the case that the
producing entity controls scoring through its composer and/or
contractor.”
Therefore, a Producer can have authority over the hiring
and employment of musicians, triggering its obligations
under Article 3, when it has authority over the composer and
music contractor who hire the musicians. Under Article 3,
the signatory Producer must also “produce” the motion
picture by taking actions associated with shooting principal
photography. If so, Article 3 applies, and the Producer must
score the motion picture in the United States or Canada.
C. Record evidence
We further conclude that on the summary judgment
record, there is a genuine dispute of material fact whether
24 AFM V. PARAMOUNT PICTURES
Paramount’s connection to SKODAM triggered its obligations
under Article 3 of the Basic Agreement. Specifically, a jury
could conclude on this record that Paramount took actions to
shoot the principal photography on SKODAM and had control
over the hiring of scoring musicians.
First, as the district court determined, there is record
evidence that Paramount “made” or “shot” SKODAM; i.e.,
that Paramount was involved in hiring, budget, and shooting
decisions related to principal photography. For example,
Paramount’s head of casting “approved” certain actors that
Mary Parent selected for the picture. During principal
photography, multiple Paramount employees reviewed the
principal photography dailies, the daily film output from
SKODAM’s shoot in Mississippi. After reviewing the dailies,
a Paramount executive made suggestions to the SKODAM
director relating to the “pace” of shooting and specific scenes.
Paramount was contractually entitled to approve the budget,
screenplay, director, and lead cast under the Co-Financing
and Distribution Agreement. By contract, Paramount also
had “final say” over material creative decisions relating to
production.
Second, there is record evidence that Paramount had
authority over the selection of scoring musicians. For
example, Paramount had the right to approve the composer,
owned œœœœ% rights to soundtrack royalties, and signed off
on the Composer Agreement, which warranted that the
scoring of the picture would not trigger AFM’s rights.
Paramount took other actions indicative of authority over the
picture’s scoring. Spendlove, the Paramount music
executive, called Paesano to discuss the motion picture and
test score. Paramount helped choose and price songs for the
score. And Paesano’s representative reached out to
AFM V. PARAMOUNT PICTURES 25
Paramount regarding “union v. non union recordings.” On
this record, a jury could conclude that Paramount exercised
control over the composer and music contractor such that it
had the requisite authority under Article 3 to preserve work
for AFM’s scoring musicians.
Paramount contends that it was only a “distributor” of
SKODAM. A jury may agree. But a signatory Producer who
contracts to “distribute” a motion picture is not, by virtue of
that responsibility, exempt from the Basic Agreement. And
under Article 3, the Producer’s actions and contractual
authority matter. Because AFM has raised a genuine dispute
of material fact whether Paramount’s actions on SKODAM
triggered its obligation under Article 3 to score the motion
picture in the United States, the district court erred in granting
summary judgment to Paramount on AFM’s breach of
contract claim.
III. Paramount’s “Hot Cargo” Defense
Paramount contends that § 8(e), the “hot cargo” provision
of the NLRA, 29 U.S.C. § 158(e), provides an alternative
basis for affirming the district court. Paramount raised this
affirmative defense in district court, but the court did not
reach it. We may affirm the district court’s grant of summary
judgment “on any ground supported by the record, regardless
of whether the district court relied upon, rejected, or even
considered that ground.” Brennan v. Concord EFS, Inc. (In
re ATM Fee Antitrust Litig.), 686 F.3d 741, 748 (9th Cir.
2012) (citation and internal quotation marks omitted). For
the sake of efficiency, we elect to consider Paramount’s
affirmative defense. Our conclusion that Article 3 is a valid
work preservation provision forecloses the “hot cargo”
defense.
26 AFM V. PARAMOUNT PICTURES
Section 8(e) of the NLRA prohibits an employer from
entering into an agreement “whereby such employer ceases
or refrains or agrees to cease or refrain from handling, using,
selling, transporting or otherwise dealing in any of the
products of any other employer, or to cease doing business
with any other person.”8 Any such agreement is “to such
extent unenforceable and void.” Id. The Supreme Court has
interpreted § 8(e) to prohibit “secondary” union pressure to
force an employer to enter such an agreement. Nat’l
Woodwork Mfrs. Ass’n v. NLRB, 386 U.S. 612, 645 (1967).
As we have explained:
Union pressure is secondary when it is
brought to bear upon a neutral or secondary
employer for the purpose of forcing that
neutral or secondary employer to apply
pressure to the primary employer . . . . The
tactical objective of secondary pressure is not
to influence the labor policy of the neutral
employer against whom it is directed, but to
influence the labor policy of the primary
employer.
NLRB v. Hotel & Rest. Emps. & Bartenders’ Union Local
531, 623 F.2d 61, 65–66 (9th Cir. 1980). Essentially, § 8(e)
“prohibits employers and unions from entering into contracts
8
Section 8(e) is known as the hot cargo provision because it prohibits
agreements where “a union and employer agree to the have the employer
cease handling the goods of another or cease doing business with any
other person.” Am. President Lines, Ltd. v. Int’l Longshore & Warehouse
Union, Alaska Longshore Div., Unit 60, 721 F.3d 1147, 1152 n.3 (9th Cir.
2013). Such goods are the “hot cargo.”
AFM V. PARAMOUNT PICTURES 27
designed to involve neutral employers in labor disputes not
their own.” Id. at 66.
Paramount asserts that AFM’s suit to enforce Article 3
violates § 8(e) because AFM’s tactical objective is to force
SKODAM Films – a neutral employer – to employ AFM
musicians. However, § 8(e) does not apply to valid work
preservation agreements. ILA I, 447 U.S. at 504. Under the
two-part test established by the Supreme Court in ILA I, a
work preservation clause is valid if it seeks to preserve
“‘work traditionally performed by employees represented by
the union . . .” and “the contracting employer [has] the power
to give the employees the work in question.’” Dist. Council
No. 16 of Int’l Union of Painters & Allied Trades, Glaziers,
Architectural Metal & Glass Workers, Local 1621 v. B & B
Glass, Inc., 510 F.3d 851, 857 (9th Cir. 2007) (quoting ILA I,
447 U.S. at 504). “Only where a work preservation provision
is ‘tactically calculated’ to further union objectives other than
preservation of bargaining unit work is § 8(e) violated.” Id.
(quoting ILA I, 447 U.S. at 504–05).
Our conclusion that there is a genuine dispute of material
fact whether Paramount had authority over the hiring and
employment of scoring musicians prevents summary
judgment on the hot cargo defense. If Paramount had
authority over the scoring musicians via its contractual
control over the composer’s selection, Paramount had “the
power to give the employees the work in question.” See id.The record thus does not permit us to decide as a matter of
law that Article 3 is not a valid work preservation provision.
28 AFM V. PARAMOUNT PICTURES
CONCLUSION
We interpret Article 3 of the Basic Agreement to apply
when a signatory Producer “produces” a motion picture by
taking actions associated with shooting principal photography
for a motion picture in the United States and has authority
over the hiring and employment of scoring musicians. Article
3 requires such a Producer to score the motion picture in the
United States or Canada using AFM musicians. If the
Producer does not do so, the Producer is in breach of the
Basic Agreement. Because, on this record, there is a genuine
dispute of material fact whether Paramount’s involvement in
SKODAM triggered the application of Article 3, the district
court erred in granting summary judgment to Paramount.
• ! •
The judgment of the district court is REVERSED and the
case is REMANDED for further proceedings consistent with
this opinion.