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Lynyrd Skynyrd’s “Free Bird” is a classic ode to independence. However, an individual’s free will sometimes encounters legal limitations. Will a movie about a 1977 plane crash that killed two Lynyrd Skynyrd members, Ronnie Van Zant and Steve Gaines, and a backup singer, Cassie Gaines, be allowed to proceed? The answer could be entertained at a trial as soon as next month.
Heirs of Van Zant and Gaines, plus a few other surviving Lynyrd Skynyrd members, are looking to block production and distribution of a film titled Street Survivor: The True Story of the Lynyrd Skynyrd Plane Crash. A lawsuit secretly filed last month in New York federal court was revealed on Friday when a judge rejected a bid for a preliminary injunction.
The dispute emanates from a “blood oath” taken upon the plane crash that befell the 1970s band which popularized Southern rock. As described in newly unsealed court papers (read here), survivors agreed “never to use the name Lynyrd Skynyrd again in an effort not to capitalize on the tragedy that had befallen the group.”
Ten years after the crash, a tour by surviving members of the band would set off litigation about use of the band’s name. A judge at the time heard about the “blood oath,” considered trademark law as well, and came to the conclusion that a “Lynyrd Skynyrd Live” album in conjunction with a 1987 tour would confuse consumers. Following the judge’s order, the parties entered into a settlement agreement, adopted by a judge as a “Consent Order.”
Artimus Pyle, who joined the band as a drummer in 1974, is described as a signatory to the Consent Order, although he evidently attempted to sign it “under protest.” Nevertheless, suing Lynyrd Skynyrd parties maintain he is restrained through agreement and court order from authorizing or participating in any story that purports to be a history of the band. Also being sued is the film division of Cleopatra Records.
In court papers opposing a preliminary injunction (see here), Cleopatra’s attorney speaks of how Pyle was once assisting in the writing of the script, but that after plaintiffs complained about his role, Pyle’s writing involvement ended. The defendant says he didn’t direct or produce the film in question, and it’s added that the coming film won’t use the band’s music and will begin with an explicit disclaimer stating that neither Lynyrd Skynyrd nor any bandmember had authorized the film. Cleopatra also argues that it isn’t bound by the Consent Decree because it wasn’t party to the legal action 30 years ago.
Street Survivor may be informed by Pyle’s story of the plane crash and his involvement in the band, but Cleopatra points out that he has been interviewed about the subject on numerous occasions without objection. Cleopatra also draws attention to how Lynyrd Skynyrd has been on tour since February, suggesting plaintiffs may be in violation of the Consent Order.
Than, there’s freedom, or more precisely, the First Amendment.
“Even if the Decree did not explicitly permit Cleopatra to interview Pyle, any references to the band or its members would have constituted a nominative fair use,” writes defendant’s lawyer, Evan Mandel.
“This is not merely a case in which the defendant has not breached any obligation that it has to the plaintiff,” he adds. “This is a case in which the defendant has an affirmative constitutional right to engage in the speech for which it is being sued: in producing and releasing the film, Cleopatra is exercising its right to make a film about a newsworthy event from the past, a form of constitutionally protected free speech.”
In response, plaintiffs’ attorneys at Otterbourg P.C. reject the proposition that stopping the film would constitute a prior restraint on speech.
“Cleopatra misstates the nature of this case,” states a reply brief (here). “As made clear in the Motion, Cleopatra is free to make a movie about Lynyrd Skynyrd and/or about the plane crash. What Cleopatra is not free to do, however, is to make such a movie in concert and participation with Pyle in violation of the restrictions imposed on him by the Consent Order.”
The Van Zant side is insisting that Pyle co-wrote the screenplay and is acting as the film’s key publicist.
Cleopatra prevailed in the first round.
Last week, U.S. District Court judge Robert Sweet ordered the parties to engage in expedited discovery to be completed by this Friday. The judge is overseeing a seeming rocket docket. He’s scheduled a trial for July 11-12.
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