By Cheryl Beise, J.D.
The federal district court in Manhattan erred by permanently enjoining the release of a motion picture about the 1977 airplane crash that killed members of the band Lynyrd Skynyrd and the effect of the crash on surviving band member Artimus Pyle, the U.S. Court of Appeals in New York City has ruled. The terms of a 1988 consent decree—signed by Pyle, other surviving band members and heirs of members who died in the crash regarding use of the name "Lynyrd Skynyrd" and exploitation of the history of the band—was inconsistent, or at least insufficiently precise, to support the injunction. Two of the three judges on the panel filed a concurring opinion, expressing their view that the movie fell within the bounds of the 1988 consent decree (Ronnie Van Zant, Inc. v. Cleopatra Records, Inc., October 10, 2018, per curiam).
Lynyrd Skynyrd was a rock band founded in the 1960s by Ronnie Van Zant ("Ronnie"), Gary R. Rossington, and Allen Collins. The band’s name was chosen as a spoof on the name of their high school gym teacher. Ronnie led the band, was lead singer, and wrote 50 percent of the songs. Artimus Pyle joined the band as a drummer in 1975. On October 20, 1977, an airplane carrying the band’s members crashed in Mississippi. Ronnie, Steven Gaines, Gaines’ sister, and several others died. Pyle, Rossington, and Collins survived. After the plane crash, Ronnie’s widow, Judith; Rossington; and Collins entered into what they called a "blood oath," promising "never to use the name Lynyrd Skynyrd again." The Oath was respected for 10 years.
1988 lawsuit and consent agreement. In 1987, the surviving band members embarked on a tribute tour to Lynyrd Skynyrd. Judith Van Zant Grondin took issue with their use of the band’s name and sued them in the Southern District of New York. The dispute was resolved by consent order Grondin v. Rossington, 690 F. Supp. 200 (S.D.N.Y. 1988). The 1988 consent agreement and order restricts how the parties to the Grondin lawsuit, including Pyle, can use the name "Lynyrd Skynyrd," the biographical material of Van Zant, and the history of the Lynyrd Skynyrd band. The agreement, however, permits the parties to exploit their life stories and portray their experiences with the band in movies.
The Cleopatra film and present suit. In 2016, Los Angeles-based Cleopatra Records, Inc., founded and co-owned by Brian Perera, decided to make a film about Lynyrd Skynyrd and the 1977 plane crash (the "Film"). In exchange for a percentage of net receipts and credit, Pyle agreed to narrate the Film, make a cameo appearance in the Film, contribute a song for the Film, and participate in on-camera interviews.
After hearing about the Film, in July 2016, Judith sent a cease and desist letter informing Cleopatra that it was not authorized to make a film about the band or to use the name, likeness, portrait, picture, or biographical material of Rossington, Van Zant, or Gaines. Cleopatra responded that it was not a party to the consent order and asserted that it had a First Amendment right to produce a film about historical events.
Rossington, Judith, and the personal representatives of the deceased band members’ estates (collectively, "plaintiffs") filed suit against Cleopatra Records, Inc. and Cleopatra Films (together, "Cleopatra") on May 5, 2017. By that date, Cleopatra had completed the principal photography and spent approximately $1.2 million on the Film, now titled "Street Survivors: The True Story of the Lynyrd Skynyrd Plane Crash."
On August 23, 2017, the district court ruled that the plaintiffs were entitled to a permanent injunction prohibiting distribution of the Film and other related activities. The court found that (1) Pyle, as a signatory to the consent order, was bound by its restrictions; (2) Cleopatra was likewise bound by the consent order, despite being a non-signatory, because it had acted "in concert or participation" with Pyle to produce the Film; and (3) the Film was "about Lynyrd Skynyrd" in violation of the consent order. The court reasoned that Pyle was not personally liable because he did not possess legal right in the film. The court also found that Perrera had attempted to evade the 1988 consent order and that the plaintiffs were entitled to reasonable attorney fees $632,111, plus any additional fees and costs incurred after July 31, 2017. Cleopatra appealed.
First Amendment. The Second Circuit did not agree with Cleopatra’s argument that the district court’s order amounted to an unlawful prior restraint on free speech because there no government action was at issue. Nevertheless, the court found that the case implicated the First Amendment.
The court cited two circumstances that "counsel caution in permitting an expressive work to be enjoined, at least outside the context of copyright law," according to the court. First, the 1988 order restrained the viewing of an expressive work prior to its public availability, and courts should "always be hesitant to approve such an injunction," the court said. Second, although parties are free to limit by contract publication rights otherwise available, the injunction in this case restricted the actions of Cleopatra, an entity that was not a party to the underlying consent agreement, because of its relationship with Pyle, who was a party to the 1988 order. Although under Fed. R. Civ. P. 65(d)(2)(C), an injunction may be applied to an entity that acts "in active concert or participation" with anyone bound by the injunction, the court explained that an injunction proscribing an expressive work, such as a movie, "raises serious concerns." One such concern is whether the injunction is specific and definite enough.
The appeals court concluded that the terms of the 1988 consent order, implemented by the district court’s injunction in this case, "were inconsistent, or at least insufficiently specific, and hence unenforceable." The consent agreement and order permitted what they also appeared to prohibit. Specifically, section 3 of the consent agreement expressly permitted Pyle to make a movie that described his life story and experiences with Lynyrd Skynyrd and to refer to the band, but he could not make a movie that purported to be a history of the band. The Film’s script told the story of the plane crash, which was part of the "history of the band" and the personal experience of Pyle.
"Provisions of a consent decree that both prohibit a movie about such a history and also permit a movie about such an experience are sufficiently inconsistent, or at least insufficiently specific, to support an injunction," the court said. The court acknowledged that sections 4 and 5 of the consent agreement imposed additional restrictions on exploiting the history of the band and the personas of Ronnie or Gaines, but those restrictions could not be interpreted to prohibit what section 3 explicitly permits. The district court’s judgment was reversed and the injunction and award of attorney fees were vacated.
Concurring opinion. Circuit Judge Jon O. Newman, joined by Circuit Judge Peter W. Hall, wrote a separate concurring opinion to express his belief that the district court’s injunction had to be vacated for the additional reason that Cleopatra’s movie would not exceed the authority that the consent decree explicitly gave to Artimus Pyle and therefore to Cleopatra. Based on his review of the 108-page script for the Film, Judge Newman opined that the movie would "describe and portray" a major "experience" that Pyle had with the band—the events before, during, and after the plane crash. "The script does not portray the history of the band. It portrays an experience from Pyle’s life, precisely what section 3 of the Consent Order explicitly permits, and, in doing so, it refers to the band, as section 3 also explicitly permits," Judge Newman said.
This case is No. 17-2849.
Attorneys: Richard G. Haddad (Otterbourg PC) for Ronnie Van Zant, Inc. Rishi Bhandari (Mandel Bhandari LLP) for Cleopatra Records, Inc. and Cleopatra Films.
Companies: Ronnie Van Zant, Inc.; Cleopatra Records, Inc.; Cleopatra Films
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