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Any close reader of film credits is familiar with the words, “The persons and events in this motion picture are fictitious. Any similarity to actual persons or events is unintentional.” On the other hand, wasn’t it philosopher Friedrich Schiller who once remarked, “There’s no such thing as chance”?
Behold a 98-page opinion issued last week by a Tennessee federal judge that dismissed a lawsuit from Grammy-winning singer Sam Moore against the Weinstein Co. over the 2008 film, Soul Men, starring Samuel L. Jackson and Bernie Mac.
Moore brought the lawsuit in 2009 alleging that the film about two African-American soul singers was a thinly veiled rip-off of his part in the popular Memphis Soul singing duo Sam & Dave, whose hits included the 1967 song “Soul Man.”
The case became contentious even by Hollywood brass-knuckle standards and featured such peculiarities as Jackson testifying in a deposition that he often doesn’t watch the documentary films he’s agreed to voice. The case also touched upon so many burning legal controversies in entertainment law that it easily could serve as a primer for anyone considering the field.
Moore said his publicity rights were violated because the film allegedly was too similar to his career. Further, he alleged he’s referred to as “Sam Moore ‘The Legendary Soul Man’ ” and that the film violated his trademarks. He also argued that the film’s soundtrack was passed off as a project he endorsed and constituted unfair competition to his own musical works. And if that isn’t enough, Moore believed that because the film was close enough to his life experiences that the divergences — the characters swear, hurl racial epithets, brandish weapons, etc. — put him in a false light.
All of these claims were pitted against a First Amendment right to free expression, and when the judge first refused to dismiss the case in 2010, it appeared that one of Hollywood’s favorite genres – the biopic – could be endangered. Or at very least, Hollywood producers might have to pay for “life rights” to any celebrity whose publicity rights might be implicated by a film or TV show.
But then the case went through a nearly two-year-long discovery fight. Experts were brought forward and doubted. Depositions were taken and, in the case of Jackson, interrogated hard. The actor testified, among other things, that he didn’t base his dancing moves on Sam & Dave moves, which were previously shown in a PBS documentary he narrated — which he didn’t actually view, as was his customary practice.
The culmination of this long ordeal was a decision last week by Tennessee District Court Judge Aleta Trauger granting the Weinstein Co.’s motion for summary judgment.
The lengthy opinion first knocks out some of the plaintiff’s experts as inadequate and unreliable. One of them didn’t even watch the film and yet came to the conclusion that the Weinsteins “must have known” about the plaintiff’s “Soul Man” when they produced and marketed Soul Men. Trauger isn’t impressed by the assumption.
Instead, the judge weighs the film’s relationship with the plaintiff:
“Notwithstanding these broad similarities, the Movie contains no direct references to “Sam & Dave” or “Sam Moore.” Sam Moore’s name is never mentioned in the Movie, nor does the Movie contain any photographs or images of Sam Moore or Sam & Dave. The Movie begins with a disclaimer that “The persons and events in this motion picture are fictitious. Any similarity to actual persons or events is unintentional.” The Movie does not contain any “Sam & Dave” recordings; the only Sam & Dave song in the film is the cover version of “Hold On I’m Comin,’ ” performed by The Real Deal (i.e., Jackson and Mac). The Movie contains various original recordings of musical performances by other R&B artists, covers of several non-Sam & Dave songs by The Real Deal, and the original song “A Walk in the Park,” which was recorded by Jackson and Mac specifically for the Movie.”
Then, claim-by-claim, the judge picks apart Moore’s case.
On trademarks, the judge finds that the title of the film has artistic relevance to the movie and has First Amendment protections. Further, the judge can’t find any evidence that the film and soundtrack referenced Moore or contained explicitly misleading statements about the content and source. Also, the marks aren’t deemed to be particularly strong or distinctive as they are unregistered, descriptive and evidently used by others. Even if Moore can demonstrate rights over the claimed marks, the judge sees insufficient evidence on consumer confusion or dilution.
The same lack of evidence on actual consumer confusion kills the claim for unfair competition.
Since the film hasn’t been demonstrated via the testimony of experts and the filmmakers to be actually about Moore, the false light claim fails too. Even if Soul Men was determined to be “concerning” the plaintiff, the judge notes that Moore hasn’t established actual malice by the filmmakers. Thus, any libel claim brought by a public figure can’t survive.
Finally, the judge applies Arizona’s less generous publicity rights laws because Moore lived there for 25 years, finding that Moore has failed to show that the defendants utilized his name, photograph or likeness.
In short, the Weinstein Co. gets a big victory in the case, knocking out all the claims.
Robb Harvey, the attorney at Waller who represented the studio along with Bert Fields and Heather Hubbard, says the lawsuit is a “significant win for the First Amendment and freedom of expression” and points to recent other recent decisions like the one involving The Hurt Locker to say that, together, the cases “will have far-reaching protections for creators of art.”
On the other hand, Harvey admits that the case doesn’t create any “bright lines” on the appropriate time when studios must pay celebrities for the use of likenesses in biopics. The law there continues to be extremely gray.
When celebrities complain about a respective project, studios sometimes pay six-figure sums for “life rights” or often will buy them off by hiring them as consultants. Even in this case, after Moore initially complained, he was offered a cameo role in the film, which he rejected as “insulting.” Other times, studios decide no payment is necessary. As one website recently noted, Margaret Thatcher, George W. Bush, and Serge Gainsbourg weren’t paid when their images, names and likenesses were used for films.
Harvey says the industry will need to judge this on a case-by-case basis. In the meantime, look forward to more disclaimers and more lawsuits. Moore’s lawyers have reportedly vowed to appeal the ruling and sent a cease-and-desist letter to TV Land a few weeks ago over a new comedy series entitled The Soul Man, featuring Cedric the Entertainer. As Schiller also said, “Disappointments are to the soul what a thunderstorm is to the air.”
Read the entire opinion on the next page.
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