But the festival plans to move forward with its screening of the film, scheduled for 7:30 p.m. MT. TFF executive director Julie Huntsinger, commented on the development at a press briefing, saying, “Let’s hope the paperwork that is there covers us properly.” She added, “We’ll leave it to the people who make a lot of money to figure this out. As far as we’re concerned, it’s on tonight. It’s a beautiful film. She should be very proud.” Speaking with THR, Huntsinger, said, “Right now we’re looking forward to screening the film right here in the Chuck Jones [Theater]. They’re seeking an injunction. We will consult with our counsel [if they get one]. They say to keep doing what we’re doing. We should know later this afternoon.”
The late Sydney Pollack shot much of the footage from Franklin’s 1972 concert performance at the New Missionary Baptist Church in Los Angeles, California and reportedly shelved it for decades because of problems with the sound. Before his death in 2008, Pollack expressed his wish for the completion of the film about the concert, which coincided with the best-selling album of Franklin’s career. However, according to legal papers filed in Colorado federal court, “the footage was taken with the express understanding that it would not be used commercially without agreement and consent by Ms. Franklin.”
Franklin previously sued producer Alan Elliott over the footage in 2011, but the dispute settled. Afterwards, the singer’s original contract with Warner Bros. was uncovered.
“Allowing the film to be shown violates Ms. Franklin’s contractual rights, her intellectual property rights, her rights to use and control her name and likeness, and represents an invasion of her privacy,” states the complaint.
The legendary singer is also pointing to a quitclaim deed that stated that the assignee of footage would need to obtain her authorization. That contract language points to re-use fees as well as synchronization and performance rights, so there could be some ambiguity on the interpretation of what kind of consent was required.
According to the lawsuit, 80 percent of the footage of the film is images of Franklin and her performance.
Injunctions are almost impossible to obtain, especially when it comes to expressive works under First Amendment protection. To prevail, Franklin will have to show she has a probability of ultimately succeeding in the lawsuit and that she will be irreparably harmed if an injunction does not issue. On the latter challenge for Franklin, she may be asked why monetary damages wouldn’t suffice in a claim for violation of her publicity rights.
“The raw footage has been locked away in the vaults of Warner Brother studios for nearly forty years,” states the lawsuit. “There is no urgency in its immediate release.”
Besides asserting a violation of her publicity rights, Franklin is also alleging that the film constitutes a violation of a federal anti-bootlegging statute. Here’s the complaint.
The documentary is scheduled to screen at Telluride later today, the opening day of the Colorado festival. It is then slated to premiere internationally in Toronto on Sept. 10.