In the latest bit of judicial guidance on the subject of fiction treading on reality, the 6th Circuit Court of Appeals on Thursday handed a big win to The Weinstein Co. in a heavily litigated battle over the 2008 film Soul Men, starring Samuel L. Jackson and the late Bernie Mac.
After the film, about the reunion of two soul singers famous in the 1960s, was released, TWC was hit with a lawsuit from Sam Moore, a Grammy-winning musician who was one half of the successful soul group Sam & Dave. Moore contended that the film was a thinly veiled depiction of his own life and that the motion picture and its accompanying soundtrack also violated his trademark to “Soul Man.”
In May 2012, a Tennessee federal judge dismissed the lawsuit in a long 98-page opinion. The case went on appeal, where Moore’s attorney argued that the judge had ignored a good deal of evidence related to how Harvey Weinstein himself had become interested in doing a film on Moore. Nevertheless on Thursday, the 6th Circuit said that the lower court’s opinion was “thorough, well-reasoned.”
In today’s decision, 6th Circuit judge Deborah Cook breaks little ground on the issue of how to balance a celebrity’s publicity rights with the First Amendment right of expression. Turning to past cases and in particular Comedy III Productions v. Gary Saderup, Judge Cook applies the “transformative elements test.” In short, there is a weighing of the appropriated likeness against a work’s expressiveness, with an emphasis on the creative elements that potentially protect a work like a feature film from claims of stealing one’s persona or likeness. In Comedy III, a dispute concerning the Three Stooges, it was held that a viable publicity claim requires a lack of creative components, akin to a “depiction or imitation of the celebrity [that] is the very sum and substance of the work in question.”
In this instance, Judge Cook says that Moore can’t meet the test.
Even if Moore could demonstrate that his likeness was appropriated, he still wouldn’t win. “Without a doubt,” writes the judge, “the Movie added significant expressive elements to any purported use of Moore’s identity.”
The appeals judge also throws out the trademark claims too, saying that Moore must meet a “famousness” bar when alleging dilution. The singer himself might be famous, but the claim “still turns on the marks’ fame — not Moore’s,” according to the ruling.
Moore may have had trouble showing that everyone understood who the real “soul man” was. Judge Cook notes, “The district court found at least thirty-four third-party musical albums, currently available for purchase, that either consist of or incorporate the phrases ‘soul men’ or ‘soul man.’
In the ruling (read here), the appeals court affirms the dismissal of Moore’s other claims as well.
Back to the issue of publicity rights.
There’s a coming ruling at the 9th Circuit concerning the Oscar-winning film The Hurt Locker, alleged to be a thinly veiled depiction of one Iraqi veteran, but barring a shocker, it’s unlikely to shift legal ground. What might be the real game-changer is a possible Supreme Court intervention. In July, the 9th Circuit gave a victory to many NCAA athletes challenging Electronic Arts’ depiction of them in video games. EA appealed the ruling to the Supreme Court, but then settled the case with those athletes. But last week, the NCAA filed a motion to intervene and take up the appeal.
In its petition for cert (read here), the NCAA argued:
“As shown in the NCAA’s petition, the interplay between right-of-publicity claims and the First Amendment is an issue on which the lower courts are badly divided. It is also important, affecting the fundamental rights of a wide array of speakers—from movie and television producers (e.g., The Social Network) to biographers and songwriters (Bob Dylan’s Hurricane), to videogame makers, like one of the defendants here.”
There are a lot of lawyers in Hollywood who will be watching this closely.