Strategy

Intellectual property: Underground dealing in Chile

The 33 miners agreed to sell their story collectively, but is the contract valid?

The story of “los 33,” the Chilean miners stuck underground for 69 days has all the makings of a good narrative: complication, action, mystery and a happy ending. Presciently, the miners made a pact while they were underground to share whatever profits come from telling their story and are rumoured to have decided to collectively author a book. According to The Guardian, they even had a lawyer send down a contract to make the “blood pact” legal, meaning when Hollywood producers come knocking, they’ll have a whole group to bargain with.

Not much is known about its content, but the circumstances under which the contract was signed have experts wondering about its validity and whether the specifics should be abided by now that they’ve survived the rescue. “Clearly, being a team player took on a special significance down there,” says Chris MacDonald, a professor of philosophy and business ethics at Saint Mary’s University. “It would be nearly unthinkable to rebel in any way. It’s not to say the contract is junk, but there are lots of reasons to ask questions.”

Calin Lawrynowicz, a Toronto-based business lawyer, says the usual purpose of signing a contract is to make or prevent losing money, but for the Chilean miners, that was probably secondary. “The contract was based on giving them hope,” he says. “It’s about ‘when we get through this, let’s share the rights.'”

Lawrynowicz wonders, now that they’re out, whether the contract should be treated as binding, or whether it is a gratuitous agreement, analogous to promising to quit smoking or drinking in a life-threatening situation but not following through.

So far, no one has strayed from the pack. The Discovery Channel’s Latin American affiliate is making Rescued: The Chilean Mine Story and British journalist Jonathan Franklin has rights to the book.

But individual stories and offers are starting to emerge, like the miner who jogged regularly in the tunnels below the collapsed rock and has been invited to the New York City marathon next month, or Yonni Barrios, the man caught in a love triangle with his wife and mistress. Barrios is reportedly being offered $100,000 to appear as a spokesperson for the Ashley Madison Agency, a company that provides dates for those looking to have extramarital affairs. Should they be legally required to share any profit with the group?

Bob Tarantino, a Toronto-based entertainment lawyer says on his blog the group is faced with a different set of challenges now that they are business partners. “It is almost inevitable that they will disagree about whether and how to involve themselves in opportunities,” he writes. “Jealousy might erupt as one or more miners become media ‘favourites,’ leading others to grumble in the background.”

Legally, the ethics are complicated by the fact that the contract, based on Chilean law, was signed in their underground society and will be applied to offers from international companies, making the original deal easier to circumvent.

Lawrynowicz says, since the miners don’t have 33 lawyers explaining their individual rights, the group should reconvene with an arbitrator to make amendments to the contract, allowing for reductions and benefits in terms of the wealth distribution.

“It’s like a shotgun wedding in Vegas,” he says. “You may be able to have a great relationship after the fact, but have to reconfirm why you got together in the first place.”