September 28, 2012 10:23am PT by Eriq Gardner
Lawsuit Aims to Stop Marlon Brando Estate From Suing Madonna Over 'Vogue' (Exclusive)
More than 20 years after Madonna came out with the international chart-topping song, "Vogue," the Material Girl could be facing legal action from Marlon Brando's estate.
The song famously goes through a long list of famous Hollywood icons:
"Greta Garbo, and Monroe / Deitrich and DiMaggio / Marlon Brando, Jimmy Dean / On the cover of a magazine."
It turns out that when Madonna tours, and likenesses of many deceased celebrities are used in "set dressing," the estates get paid. For example, when Madonna performed "Vogue" at the Super Bowl last February, she paid $3,750 each to the estates of James Dean, Jean Harlow, Ginger Rogers, Bette Davis, Lana Turner, Greta Garbo, Marlene Dietrich, Gene Kelly, Grace Kelly and Joe DiMaggio.
CMG Worldwide, an Indiana-based firm that manages the intellectual property rights of many dead stars, represents many of these estates. One it doesn't is Brando's.
When Madonna wanted to go on tour after the Super Bowl in support of her latest album, and wanted to reprise "Vogue" and all its famous celebrities, the touring company Bhakti Touring, Inc. went to CMG and asked for help in gaining clearance for use of the dead stars' publicity rights, including Brando's.
CMG agreed and began negotiations with Brando Enterprises and its agent at Brand Sense Partners (BSP). Now, a lawsuit has erupted, and CMG is asking for a declaratory judgment that among other things, would prevent the Marlon Brando estate from suing Madonna, and would prevent all of those dead stars from taking action against CMG.
At Madonna's Super Bowl performance, CMG says it was able to work out an agreement with BSP so that the Brando estate, just like the others, would be paid $3,750.
Then, Madonna wanted to do it again. In May, Bhakti contacted CMG to inquire about using Brando's right of publicity for Madonna's 2012 world tour. Acting as the clearing agent, CMG wrote to BSP and proposed that $3,750 would once again be paid to Brando.
The deal, according to CMG, was the same as what the other dead stars got, and a draft of the written agreement also included a "most favored nation" clause that ensured that each star -- Brando, James Dean, Greta Garbo, etc. -- would get equal financial treatment.
Later that month, CMG was able to get Bhakti to increase the fee it would be paying to $5,000 for each dead celebrity. BSP purportedly responded to this development by saying, "Great news."
As a result of the progress, Bhakti moved forward with its plans to use the dead personalities for a Madonna world tour.
But in the last week of May, BSP allegedly decided to change the terms of the bargain. BSP was now demanding that Brando be paid $20,000.
Although CMG doesn't explicitly say it in its lawsuit, this was too much. Since each dead star had a "most favored nation" clause, that would mean a concert performance of Madonna's "Vogue" would have a dead-celebrity fee of about $200,000 instead of about $40,000.
In July, CMG quietly filed a lawsuit in Indiana state court, alleging that Brando Enterprises and BSP had reneged on a valid and enforceable contract. CMG also demands a declaration of promissory estoppel so that CMG won't face a breach of contract lawsuit from Bhakti, Madonna, and the estates of James Dean, Jean Harlow, Ginger Rogers and all the other dead celebrities. CMG also demands that Brando's estate and its agents be prevented from bringing any lawsuits against CMG, Bakhti, and Madonna for violations of Brando's intellectual property.
On Wednesday, Brando Enterprises had the lawsuit removed to federal court in Indianapolis citing "diversity jurisdiction," or what happens when citizens of different states are involved in a big dispute.
According to a filing that introduces the litigation to a federal judge, "Despite the fact that Plaintiff is asking the Court to award it the Brando IP Rights for a mere $5,000, the true value of those rights in this litigation exceeds three-hundred thousand dollars ($300,000)."
The defendants go onto say that the lawsuit will show that Madonna exploited Brando's IP during nearly 90 different concert performances.
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