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Artie Shaw

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Brigitte Berman is a Toronto film maker and a "Producer-Director" at the CBC. Not long ago, she made an authorized documentary on the life of Artie Shaw, the big-band leader. Shaw co-operated with all of Berman's requests, even making himself available to her at his California residence.

There was limited paperwork between Berman and Shaw on the film. Apart from a short, one page letter from Shaw granting Berman the right to use his recordings (provided that she paid the appropriate licensing fees to his music publishers), the only agreement between them was this one sentence letter:

"This is to confirm that Brigitte Berman's documentary film on me is being done with my co-operation and under my authorization."

No funding was provided by Shaw. All expenses associated with the project were borne by Berman. Loans made by Shaw to Berman were repaid.

While the film was not a financial success, its artistic merit was recognized by the receipt of an Academy Award for Best Documentary. At that point, Shaw claimed a 35% interest in the film's profits. Berman refused to acknowledge any such share. Shaw sued in Ontario.

In court, Shaw contended that he would have included such a share in his agreement with Berman had he anticipated that the film was to be commercially exploited. The judge refused to interpret such a provision into the contract, saying that on the evidence, Shaw merely agreed to authorize and co-operate in the film's production.

The real lesson from this case for readers comes from this statement of the judge:

"As is not unusual among artists, not much of their understanding of each other's rights and obligations were committed to writing."

The same might be said of the understandings between an advertising agency and their clients. Should relations between an agency and client sour (as has been known to happen), the more terms that govern the relationship between agency and client that are committed to paper, the firmer the position of the agency when it attempts to enforce its rights at the time of a divorce.

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