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The Second Circuit Court of Appeals has lifted a judge’s injunction against Street Survivor: The True Story of the Lynyrd Skynyrd Plane Crash. The decision will come as relief to Cleopatra Films, the producer of the movie about the 1977 plane crash that killed Lynyrd Skynyrd members Ronnie Van Zant and Steve Gaines, although it doesn’t go as far as free speech advocates in the media industry who rushed to support Cleopatra would have liked.
Heirs of Van Zant and Gaines as well as founding lead guitarist Gary Rossington sued the makers of the film in 2017 for working with Artimus Pyle, a former drummer in the band.
According to lore, the survivors of the plane crash took a “blood oath” never to use the name Lynyrd Skynyrd again. That pact was tested a decade later in a lawsuit over a “Lynyrd Skynyrd Live” album in conjunction with a 1987 tour. The parties in that litigation entered into a settlement agreement, adopted by a judge as a “Consent Order.” One of the signatories was Pyle.
In August 2017, after a trial recounted the tragedy, the dealmaking in the aftermath and a film that focused principally on Pyle and his relationship with the band that popularized Southern rock, U.S. District Court judge Robert Sweet prohibited Cleopatra from moving ahead with Street Survivor. In his decision, Sweet wrote, “Cleopatra is prohibited from making its movie about Lynyrd Skynyrd when its partner substantively contributes to the project in a way that, in the past, he willingly bargained away the very right to do just that; in any other circumstance, Cleopatra would be as ‘free as a bird’ to make and distribute its work.”
The appeal presented the issue whether the release of the movie violated an old settlement — and whether that was enough to stop release of the film. The Reporters Committee for Freedom of the Press and 13 media organizations saw Sweet’s ruling as dangerous, arguing that “if this Court were to permit an injunction permanently preventing the publication of speech in this instance, such a precedent could be used to permanently enjoin the press from publishing information from a source on the basis of the source’s agreements with other entities.”
To echo the example we once gave, might Harvey Weinstein have been able to stop the New York Times exposé about his sexual misconduct based on the confidentiality obligations of some of his female accusers? Can “hush agreements” stand in the way of a free press?
A per curiam opinion from the appellate court (read here) shrugs off this larger concern.
Cleopatra “supported by several journalism and entertainment organizations, see this case as a classic First Amendment violation involving an unlawful prior restraint,” states the opinion. “It is not. No government entity has obtained a court order to prevent the making or release of the Film…nor does this case involve a claim of defamation or invasion of privacy as to which the First Amendment imposes special requirements.”
The appellate court doesn’t seem to view Sweet as acting as a government entity when preventing the release of the film.
Nevertheless, the three circuit judges do say the case “implicates free speech concerns, and two circumstances counsel caution in permitting an expressive work to be enjoined, at least outside the context of copyright law where copyright’s built?in free speech safeguards are generally adequate to address First Amendment concerns.”
First, the new decision echoes how courts should be hesitant before approving a prior restraint even in the instance where one has been imposed as a result of private contract. Second, the appellate judges say that although parties are free to limit by contract publication rights, the injunction here restricts actions of an entity not a party to that contract.
“Cleopatra did not sign the Consent Order,” states the opinion. “The Order was sealed when entered, although Cleopatra became aware of its existence before it had spent any significant amount of money to make the Film. The District Court applied the Consent Order to Cleopatra because of its relationship with Pyle, who was a party to the Order.”
The Second Circuit counsels judges to be careful about imposing injunctions yet won’t draw any bright lines. In fact, the appellate judges might have still upheld the injunction on this Lynyrd Skynyrd film but for the language of the Consent Order, whereby Pyle is permitted to make a movie that describes his experiences and refer to the band, but not make a movie that serves as the history of the band.
This is deemed as falling short of what’s needed to support an injunction.
“That crash is part of the ‘history’ of the band, but it is also an ‘experience’ of Pyle with the band, likely his most important experience,” notes the Second Circuit. “Provisions of a consent decree that both prohibit a movie about such a history and also permit a movie about such an experience are sufficiently inconsistent, or at least insufficiently specific, to support an injunction.”
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