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After a 90-minute hearing in a Denver federal courthouse, U.S. District Judge John Kane has granted Aretha Franklin‘s emergency injunction motion to stop the film Amazing Grace from premiering tonight at the Telluride Film Festival.
The documentary had been scheduled to screen at 7:30 p.m. in Telluride. In the wake of the court ruling, the festival announced it would screen Jennifer Peedom‘s Sherpa, a documentary about the Sherpas who assist climbers on Mt. Everest, in that screening slot. While the festival sent out a notice alerting festivalgoers that “a Colorado judge has granted the injunction to block the screening of Amazing Grace at the Telluride Film Festival” and announcing the Sherpa substitution, it did not immediately offer any further comment on the situation.
As first reported by THR, the legendary singer filed papers late yesterday over a film that uses Sydney Pollack-shot footage of her 1972 concert performance at the New Missionary Baptist Church in Los Angeles. She argued that the deal she originally had made with producers allowed them to film the performance but required her consent to distribute the film and that Amazing Grace improperly used her likeness and name.
To win an injunction, Franklin needed to show a likelihood of prevailing in the lawsuit plus irreparable harm, and Kane, in a three-page ruling (see here) granting a temporary restraining order, found that she has hurdled past those legal requirements.
“In 2008, a producer named Alan Elliott obtained rights to the footage of the concert from Warner Bros. Studios via a quitclaim deed,” the ruling states. “The quitclaim deed makes specific reference to the need to get Ms. Franklin’s permission to use the concert footage.”
Elliott didn’t obtain such permission, so Kane granted an order preventing the showing of the film for at least 14 days.
In a phone interview with The Hollywood Reporter after the ruling, Judge Kane said the decision was an easy one. “He had to have permission from her and he didn’t,” Kane said. “He went ahead without having her consent.” In addition, Franklin, who called in to the hearing from Detroit for 10 minutes and was questioned by attorneys, “has a right to enforce her right to publicity,” Kane said. “She’s under no obligation to give them permission.”
It is extremely rare for a judge to enjoin a film from being released. But Kane said the issue of the First Amendment did not come up at the hearing and was not relevant because the real issue was contractual. “Even though Pollack had permission to film it, he didn’t have permission to release it.”
According to the lawsuit, 80 percent of the footage of the film comprises images of Franklin and her performance in connection with her best-selling 1972 album. The judge decided that the film also was a violation of a federal anti-bootlegging statute.
UCLA School of Law professor Eugene Volokh believes the decision is a curious one, particularly with respect to the absence of a copyright claim and the use of anti-bootlegging law to enjoin distribution. And while the appearance of contractual rights creates a rub, other attorneys are expressing shock at the development. Lincoln Bandlow, a partner at Fox Rothschild whose clients include Morgan Spurlock and Conan O’Brien, says today’s decision is an “unprecedented, extraordinary and wrong prior restraint that will hopefully be pursued on appeal.”
Amazing Grace was scheduled be shown tonight at Telluride and then again at the Toronto Film Festival on Sept. 10. The Colorado judge has no jurisdiction over Canada, so the film still could be shown if Franklin’s lawyers don’t seek a similar ruling there. But Franklin’s Detroit attorney Fred Fresard tells THR that her team plans to pursue a similar injunction in Canada if the Toronto festival tries to show the film. Producers also might now be incentivized to make a financial deal with Franklin.
“Aretha Franklin has spent over 50 years developing her art,” Fresard tells THR. “Congress passed laws to protect artists like her. The producers needed to get her permission. So we think this was the right decision and we are very happy with the result.”
In pursuing an injunction, Franklin’s Colorado lawyer, Reid Neureiter, cited a decade-old decision granting an injunction in a copyright case involving video clips of Elvis Presley in a 16-hour documentary about the singer’s life. In that case, a court made a First Amendment analysis and decided there was no “fair use” to the Presley estate’s intellectual property.
Here, Franklin has pulled off the extraordinary feat of enjoining the distribution of the film pending further exploration of her legal claims. “Aretha Franklin has spent over 50 years developing her art,” her Detroit lawyer Congress passed laws to protect artists like her. The producers needed to get her permission. So we think this was the right decision and we are very happy with the result.”
Amazing Grace has a tortured history thanks to Pollack’s failure to get the sound right, but oddly, Franklin has told one reporter she “loves” the movie.
Telluride was represented by Scott Thomas Rodgers and Jack Markham Tanner.
Sept. 4, 4:30 p.m. Updated with comments from Judge Kane and Franklin’s lawyer.
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