Bloomer Girl tells the story of the women's reform movement and the women's struggle for civil rights. Originally a book, it opened as a play in the Shubert Theatre in New York in 1944.
In March 2001, contracts Professor Charles Knapp posted the following message concerning Bloomer Girl on a contracts law professor listserve:
Contracts teachers familiar with Shirley MacLaine's suit against 20th Century Fox growing out of their decision not to make a film of the 1944 Broadway musical "Bloomer Girl" (Parker v. Twentieth Century Fox, 474 P.2d 689 Cal. l970)) may be interested to know that this rarely-performed show was given a brief revival last weekend as part of the justly-acclaimed "Encores" series in NYC, in a semi-staged concert version. Having seen the show in its original incarnation as my first exposure to the musical theater, I was pleased to see that it holds up pretty well. Thanks to "Yip" Harburg's intelligent and witty book and Harold Arlen's music (this team had earlier provided us with the score of "The Wizard of Oz"), "Bloomer Girl" proved itself to be still funny, intelligent, politically provocative and occasionally even moving -- as when the young runaway slave sings "The Eagle and Me", a song originally performed by Dooley Wilson, forever remembered as "Sam" in "Casablanca". In a program note in the Playbill, the writer notes that unlike other shows of its era like "Oklahoma!" or "Carousel", "Bloomer Girl" has fallen into obscurity, and suggests that one reason for this could be the fact that it was never filmed, adding the speculation that "its racial attitudes might well have made it impossible to release below the Mason-Dixon line." Since it seems evident to me that (a much younger) Shirley MacLaine in the title role would have been perfect casting, I can only regret that Fox dumped the movie -- but then we wouldn't have the Parker case to debate!
Professor Knapp's posting rekindled long running discussion of the case among contracts law professors. Much of the discussion dates to an influential law review article by Professor Mary Joe Frug (1941-1991) in 1985. In that article (Frug, Feminist Analysis of a Casebook, 34 Amer. Univ. L.Rev. 1065 (1985)), Frug offered a feminist critique of a leading Contracts casebook, J.Dawson, W. Harvey, & S. Henderson, Cases and Comment on Contracts (4th Ed. 1982). Among her criticisms was the omission from the casebook of any information that would alert readers to the feminist themes in "Bloomer Girl." That omission, Frug argued, denied readers the opportunity to consider or explore more fully the reasons that Shirley MacClaine might have had for refusing a role in Big Country, Big Man, namely, that Shirley MacClaine might have identified with the political causes espoused by Amelia Bloomer, "a mid-nineteenth century feminist, suffragist, and abolitionist" (Frug, supra at 1116), or might have identified with the metaphor of bloomers, "loose trousers that some women wore under a short skirt, without hoops, multiple petticoats, or restricting underwear" (Frug, id.), representing a rejection of fashion constraints imposed by men. Equipped with information about Bloomer Girl or about Shirley MacClaine's actual reasons for declining a role in Big Country, Big Man, readers of Parker v. Twentieth-Century Fox Film Corp. would be better equipped to evaluate the competing views in the case and to appreciate the difficulties of reconciling a communal value (one shouldn't get paid for doing nothing while everyone else works, even if injured by breach of contract) with an individualistic value (one shouldn't be forced to work at something that doesn't suit the employee when the employee's choice of work has been frustrated by another's breach).
Here is an edited sampling of the listserve discussion prompted by Professor Knapp's March 2001 posting.
Professor Burnham (University of Montana School of Law):
I share some of Mary Joe Frug's commentary when teaching Parker, and I always wonder how much of it would ring true to Shirley MacLaine. Was it argued in the briefs? Just what was her motivation in turning down Big Country, Big Man? Has anyone ever asked her?
Also, while I am sympathetic to the argument that the woman's role was probably more positive in Bloomer Girl than in Big Country, Big Man, I always get a student who argues that to judge the movie by its title and to assume that the woman's role was subordinate to the (big) man's role is to engage in stereotyping behavior! I would love to answer that argument with some facts. I assume that movie was also never made, but has anyone ever looked at a screenplay or source material?
Professor Macaulay (University of Wisconsin School of Law):
We tried to find out without a great deal of success. Bob Gordon, as I recall, did talk to her agent. (As I recall, he had the daughter of the agent in a class at Harvard when he visited there). He stressed the loss of the role in Casino Royale rather than any defect in BCBM [Big Country, Big Man]. Often one of my students points out that Ms. MacLaine did appear in a dog with a title something like "Two Mules for Sister Sarah."
One problem in asking Ms. M is whether you would trust her memory today. We've been through a changing of consciousness in the period between when she made her decisions and when we could get to her. Anyone's answer would be colored by this.
I've always thought that the director and script approval rights were likely the critical factor. She lost those in BCBM, and the NY Times articles that I have read say that they are critical. Stars want this to be sure that they control how they look and what gets cut. They also are a real symbol of who is important. To sign a contract without them signals that a former big star is slipping. This may affect the parts offered in the future. This is all hearsay, but it is plausible.
Mary Joe Frug wrote me about BCBM. She said that the title was registered but that it was likely that no firm script had been written.
Professor Kelly (University of San Diego School of Law):
I don't know Shirley MacLaine's actual thoughts on Big Country, Big Man. But if you've ever seen Two Mules for Sister Sarah, made at about the same time, you'd have to wonder how Mary Jo Frug would reconcile Ms. MacLaine's decision to accept that role but not the other. In Two Mules, Ms. MacLaine plays a prostitute who masquerades as a nun in a western set in Mexico. She helps Clint Eastwood blow up a Mexican Army fort -- perhaps at the time of the French occupation, I don't quite recall. Whether her role is subordinate to Clint Eastwood's could be debated. She is the title character (Sister Sarah), but he keeps her alive on more than one occasion. In any event, the role is a far cry from the barefoot-and-pregnant-in-the-kitchen stereotype. Perhaps there is a feminist explanation for why this role was more positive than Big Country, Big Man. But Scott Burnham is right that some detail about Big Country, Big Man would be needed to make the argument persuasively.
Professor Halpern (Ohio State University School of Law):
There is perhaps something I can add since I was practicing law in a related matter at the time of the Parker litigation. At the time, the movie studios were being challenged generally by a growing independence of actors and directors and the emergence of independent productions. At the same time, a few, a very few, women were asserting a degree of power. There were disputes with Shirley MacClaine, Debbie Reynolds, and protracted litigation with the then very well known Carroll Baker. The issues in the lawsuits were almost incidental; after all, any lawyer looking at the Parker situation would have to wonder why the case wasn't settled. What was really at stake were matters of power. In the Baker litigation, Paramount had no real case, and, even after losing summary judgment motions, persisted in an attempt to wear her down. They refused to settle and ultimately paid a substantial judgment rather than employ her and, in the process, effectively destroyed her career. Throughout the litigation, it was made clear that there was overall concern with the challenge to the existing power system in the movie business. It is in that context, and only in that context, that Parker represents issues of feminism. I never could agree with Frug's general attack on the Dawson casebook; I think that in fact, and fortuitously (since I don't believe that Frug knew any of this background) the Parker case really did involve issues of feminism and equality. In that sense, the script approval and other perks MacClaine sought were symbolic of the underlying dispute.
Professor Snyder (Texas Wesleyan University School of Law):
My take on the Parker case . . . is that it's not really an employment case at all, although that's how my casebook tends to present it. If MacLaine had been an electrician instead of a star, and had been given the opportunity to work on BCBM instead of the promised Bloomer Girl, I doubt the court would have said that she had no duty to mitigate by taking the BCBM offer. Ordinary employees seem generally to lose those cases.
It's the fact that she's a star that (to me) makes the difference. MacLaine isn't an employee, she's an independent business whose chief asset is a piece of intellectual property -- her own image and likeness. The studio isn't hiring MacLaine as an employee; it's essentially licensing her name and likeness for use in its own film. (Her own physical efforts may necessarily be part of the deal, but it's not really her labor that's the issue.)
MacLaine has the same property interest in her image that Disney has in Mickey Mouse, a value that's independent of the present employment. One reason MacLaine accepts or rejects certain film offers (like the reason Disney licenses Mickey for McDonald's but not Marlboro cigarettes) is that her IP will be enhanced or degraded depending on the project. Mickey Mouse doesn't do NC-17 movies, because it would damage the image; I doubt a court would require Disney (in a licensing dispute) to mitigate damages by putting Mickey on condoms. I think the same principles work for MacLaine. A role that would be equivalent in terms of employment (as BCBM sounds to me; the differences seem less onerous than what most employees have to put up with in routine reassignments) may have a very different effect on the value of the IP. I think that's really the key to the Parker case.
Whether employees OUGHT to be subjected to a different mitigation standard than licensors of intellectual property is, of course, a different question.
Franklin Snyder's suggestion that intellectual property in her image is a better explanation of the decision is fascinating. If the court had put the decision on that basis, it would help keep the case from screwing up employment law. I wonder, though, whether an electrician really would lose in this setting. Unlike a movie star, for whom travel to location is simply part of the career, an electrician would not be expected to take work in Australia. There, the ordinary rule making it reasonable to refuse work in another city -- even if stretched to match modern mobility by including an entire metropolitan area rather than just a city -- would give the employee a win. And my (limited) experience in these cases doesn't suggest that employees lose on avoidable consequences very often. Relatively modest efforts to find a job seem to suffice, even when the employee appears to have taken an extended vacation while going through the motions of looking for work.
Professor Victor Goldberg offers yet another perspective on the case. The contract included a standard "pay or play" provision, promising MacClaine $750,000 but making clear that the studio had no obligation to make the movie or to use her in the movie. Professor Goldberg argues that the contract should therefore have been viewed as one in which, for $750,000, the studio purchased an option to use Shirley MacClaine's services in a movie project. Had it chosen to exercise the option, the contract provided that she would receive a share of gross profits (offset by $750,000 guaranteed compensation). Having chosen not to exercise the option, the studio owed her the $750,000 option price because an optionee has no duty to mitigate the option price. Victor Goldberg, Framing Contract Law 279-309 (Harvard University Press 2006).