Steve Perry's Lawsuit Over Unreleased Demo Vocals Moves Forward

Perry and Phil Brown are battling over a series of recordings they made in the early '90s.
Theo Wargo/WireImage for Rock and Roll Hall of Fame

Former Journey frontman Steve Perry doesn't need to stop believin' in a lawsuit over vocals he recorded in a garage two decades ago, as a California judge has denied a motion to dismiss his claims.

Perry in November sued Phil Brown, claiming the musician wants to release without his permission demos the two recorded together in the early 1990s. Perry says he never intended for those vocals to be used in a larger sound recording in which any other party would have a copyright interest and that the two signed an agreement that Perry would control the exploitation of the musical compositions. 

According to Perry's complaint, Brown in 2002 claimed a copyright interest in the recordings and threatened to release them. The singer's attorneys responded and Brown never took any legal action. Fast-forward another decade and a half. After Perry released his solo album Traces in October, Brown's manager Brenda Bann posted promotions on Facebook and Twitter for Brown's upcoming album using photos of Perry and a clip from one of the recordings. Perry says Brown has ignored his cease and desist demands, so he sued. He asked the court for a declaration to clear up who owns the recordings, and is seeking damages for violation of his publicity rights and false endorsement. The court in November granted a temporary restraining order that bars Brown from releasing the works.

Brown in February filed a motion to strike the singer's right of publicity claims under California's anti-SLAPP statute, arguing the social media statements were protected speech on a matter of public interest. He also says that Bann is his girlfriend, not his manager, and the social media posts are protected by fair use. Brown also claims he has "at all times maintained both creative and physical control" over the recordings and has the right to license, sell or otherwise monetize the works without Perry's consent. 

Brown also asked the court to toss the entire complaint, arguing that the California federal court lacks personal jurisdiction because he lives in Tennessee and has a lack of sufficient contact with California.

U.S. District Judge John Walter on Wednesday denied Brown's motion, finding Perry has demonstrated a reasonable probability of prevailing on his right of publicity claims. 

"For example, Plaintiff has demonstrated Defendant’s unauthorized use of Plaintiff’s name and likeness on Twitter and Facebook to promote Defendant, Defendant’s band, and Defendant’s upcoming album," writes Walter. "This unauthorized commercial use of Plaintiff’s name and likeness in an effort to mislead and confuse the public by capitalizing on Plaintiff’s name and reputation demonstrates that Plaintiff will likely prevail on his right of publicity claims. Although Defendant argues that he was a joint author of the four recorded vocal performances (which Plaintiff disputes), even if he is able to prevail on this argument, it would not bar Plaintiff’s right of publicity claims." 

Walter also found that his court has jurisdiction because Brown was aware Perry lived in California, and therefore his conduct was aimed at the forum state, and the alleged harm to Perry's trademark and reputation would be suffered in California. He didn't reach the issue of whether Brown's social media posts were a fair use, finding that's more appropriate for summary judgment. (Read the full decision below.)

A hearing on the preliminary injunction is currently set for March 25.