Problem.Dispute.Digital photographs

     Law professors and law teaching materials often pose questions that are difficult to answer, or that have no answer to which all lawyers, judges, or legal academics would agree.  We pose those questions for the purpose of developing student skills in legal analysis. We sometimes overlook the easy questions with clear answers.   In so doing we can create an impression, often frustrating to law students, that there are no easy legal questions and no answers.  But there are many easy, or at least easier legal questions, and many answers.  To feel a little bit more accomplished in your study of law, try to put the difficult questions in a broader context of the easier questions and answers. 

     The following sequence of questions, culminating in a dispute involving digital photographs, illustrates the progression from easy to difficult.   For each of the questions, consider U.C.C 2-102, 2-105(1), and Nim Plastics Corp. v. Standex International Corp. 

     1.  Is your lease of an apartment governed by U.C.C Article 2?  What about your contract with Santa Clara University to provide you a legal education in exchange for tuition?  What about the insurance policy on your car?   Your visit to the doctor?  Your purchase of a home or other real estate?   Your employment as an associate at a law firm or your subsequent partnership agreement in a law partnership?  Your agreement to represent and provide legal services to a client? 

     2.  Is your purchase of law books from the Campus Store governed by UCC Article 2?  Even though many people (author, publisher, carrier, bookstore employees) expended labor in getting the books to your hands?  Is the purchase of the law books by the Campus Store from the publisher governed by U.C.C Article 2?  What about your sale next year of a used law book to an incoming first-year student? 

     3.  Is a contract between the United States Women's Hockey Team and a manufacturer of hockey uniforms to design and manufacture new hockey uniforms for the team governed by U.C.C Article 2? 

     4.  Is your contract with a painter to paint your house governed by U.C.C Article 2 if the painter is to supply the paint?  What about your contract with a plumber to repair a leak in the plumbing at your residence, which turns out to require that the plumber replace some pipe?  What about your contract with a plumber to install a water heater that you have already purchased from a hardware store?   What about your contract with a plumber to provide and install a water heater?  

     5.  Now the more difficult question. 

     Rachel's godfather Phil took still photographs of Rachel's high school graduation and graduation party with a non-digital camera.  Rachel's mother Tisha asked Phil if he would get the photographs scanned onto CDs that Rachel could give as gifts to each of her four close graduating friends.  Accordingly, the day after the festivities, Phil took his rolls of film to Fox Camera, which had advertised its ability to scan negatives into digital form and save them to a CD.  Phil ordered five CDs at a total cost of $100.00 and also ordered one set of negatives and regular prints.  A few days later, Phil paid for and picked up the CDs, negatives, and prints.  He gave them all to Rachel as part of his graduation gift to her.   Rachel kept the negatives, prints, and one CD and gave the other CDs to her four friends.  

     As Rachel's friends began to use the CDs to look at the pictures on their computer monitors and print out copies on their printers, all of them noticed that the faces of a few of the graduates were blurred almost beyond recognition in two of the photographs.  Because there was no blurring on the prints that Rachel had kept, she suspected that there might be something wrong with the CDs or with the process of digitizing the pictures.  She asked Phil if he could ask Fox Camera to redo the CDs. 

     Fox Camera told Phil that they would try again, using the negatives, but that they would charge him full price again for the second attempt. 

     Assume for purposes of discussion that Phil's rights against Fox Camera under U.C.C Article 2 might be somewhat different than his rights against Fox Camera would be under the common law of contract.  Does U.C.C Article 2 or the common law of contract apply to his transaction with Fox Camera? 

     6.  Here are some additional difficult questions.  Would your answer be different if, instead, Phil contracted with Fox Camera for Fox Camera to digitize and upload the photographs to a website from which, with a key number, Rachel and her friends could download the photographs?  How would you answer this question and Question 5 if the state whose law applies to the transaction has adopted amendments to U.C.C Article 2 in which the amended definition of "goods" excludes "information" (but gives no definition of "information")?