Risky Business: Rejecting Adherence to Industry Standards in Exclusive Songwriter Agreements

Abstract

Part I of this Comment addresses the formation of the doctrine of unconscionability. Part I also covers the nature of exclusive songwriter agreements and how the doctrine of unconscionability can be utilized to level the playing field between songwriters and music publishers. Part II analogizes other areas within the entertainment industry where the courts have rejected adherence to industry standards and reformed the contractual agreements between the parties. This section's primary focus will be the court's reasoning in Phase II of Buchwald v. Paramount Pictures Corp. (Buchwald II) and how that court's analysis can be applied to exclusive songwriter agreements. Although Buchwald II is unpublished, the case is cited by commentators when addressing what they believe should be the appropriate analysis regarding unconscionability in contracts. The decision in Buchwald II will be contrasted with decisions reached in other areas of the entertainment industry in the United States and the cases that have become known simply as the "English Music Trilogy."'" The conclusion of this Comment will include both legal and policy arguments as to why adherence to current industry standards in exclusive songwriter agreements is a disservice to both parties of the contract.