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Ronnie Van Zant, Inc. v. Cleopatra Records, Inc.

United States Court of Appeals, Second Circuit

October 10, 2018

RONNIE VAN ZANT, INC., GARY R. ROSSINGTON, JOHNNY VAN ZANT, BARBARA HOUSTON, as the Trustee of the Allen Collins Trust, ALICIA RAPP, as the Personal Representative of the Estate of Steven Gaines, CORINNA GAINES BIEMILLER, as the Personal Representative of the Estate of Steven Gaines, Plaintiffs - Appellees,
v.
CLEOPATRA RECORDS, INC, CLEOPATRA FILMS, a division of Cleopatra Records, Inc, Defendants - Appellants, [1]

          Argued: May 10, 2018

         Appeal from the September 13, 2017, judgment and permanent injunction of the District Court for the Southern District of New York (Robert W. Sweet, District Judge), enjoining the release of a movie for alleged violation of a consent decree settling a suit between private parties.

         Judgment reversed and injunction vacated because the terms of the consent decree, which were implemented by the District Court's injunction, are inconsistent, or at least insufficiently precise, to support the injunction.

          Evan M. Mandel, (Rishi Bhandari, on the brief), Mandel Bhandari LLP, New York, NY, for Defendants-Appellants Cleopatra Records, Inc. and Cleopatra Films.

          Richard G. Haddad, (Sandor Frankel, Pauline McTernan, on the brief), Otterbourg P.C., New York, NY, for Plaintiffs-Appellees Ronnie Van Zant, Inc., Gary R. Rossington, Johnny Van Zant, Barbara Houston, Alicia Rapp, and Corinna Gaines Biemiller.

          Nathan Siegel, L. Danielle Toaltoan, Davis Wright Tremaine LLP, New York, NY, for amici curiae A&E Television Networks, LLC, Home Box Office, Inc., Metro-Goldwyn-Mayer Studios Inc., NBCUniversal Media, LLC, Paramount Pictures Corporation, Sony Pictures Entertainment Inc., Twentieth Century Fox Film Corporation, Univision Communications Inc., and Warner Bros. Entertainment Inc., in support of Defendants-Appellants.

          Bruce D. Brown, Gregg P. Leslie, Caitlin Vogus, The Reporters Committee for Freedom of the Press, Washington, D.C., for amici curiae The Reporters Committee for Freedom of the Press, American Society of News Editors, The Associated Press Media Editors, Association of Alternative Newsmedia, The Association of American Publishers, Inc., Discovery Communications LLC, Dow Jones & Company, Inc., First Amendment Coalition, First Look Media Works, Inc., The International Documentary Association, The Investigative Reporting Workshop, MPA - The Association of Magazine Media, National Press Photographers Association, and The Tully Center for Free Speech, in support of Defendants-Appellants.

          Before: NEWMAN, HALL, and CARNEY, Circuit Judges.

          PER CURIAM

         This appeal presents the issue of whether the release of a movie will violate the provisions of a consent order that settled a lawsuit between private parties. This issue arises on an appeal by Defendants-Appellants Cleopatra Records, Inc. and Cleopatra Films (together, "Cleopatra") from the September 13, 2017, judgment and permanent injunction of the District Court for the Southern District of New York (Robert W. Sweet, District Judge). See Van Zant, Inc. v. Pyle, 270 F.Supp.3d 656 (S.D.N.Y. 2017). The consent order settled a suit brought in 1988 by Judith Van Zant Jenness ("Judith"), then known as Judith Van Zant Grondin, against past and then present members of the rock band known as Lynyrd Skynyrd. See Grondin v. Rossington, 690 F.Supp. 200 (S.D.N.Y. 1988). The 1988 suit sought to clarify each party's rights with respect to use of the name "Lynyrd Skynyrd" and their rights, among other things, to make films about the band and their own lives.

         We conclude that the terms of the Consent Order are inconsistent, or at least insufficiently precise, to support an injunction, and we therefore reverse the judgment of the District Court and vacate the injunction.

         Background

         The Lynyrd Skynyrd band. Lynyrd Skynyrd was a rock band founded in the 1960s by Ronnie Van Zant ("Ronnie"), Gary R. Rossington, and Allen Collins. "The name Lynyrd Skynyrd was chosen as a spoof on the name of their high school gym teacher and is pronounced [as if it were spelled] Leonard Skinnerd." Grondin v. Rossington, 690 F.Supp. 200, 202 (S.D.N.Y. 1988). Artimus Pyle, an individual critical to the issues in the pending appeal, joined the band as a drummer in 1975. Ronnie led the band, was lead singer, and wrote 50 percent of the songs. On October 20, 1977, an airplane carrying the band members crashed in Mississippi. Ronnie, Steven Gaines, Gaines' sister, and several others died. Pyle, Rossington, and Collins survived.

         After the plane crash, Judith, Ronnie's widow, Rossington, and Collins entered into what they called a "blood oath" (the "Oath"), promising "never to use the name Lynyrd Skynyrd again." See Grondin, 690 F.Supp. at 202. The Oath was respected for 10 years.

         In 1987, the surviving band members embarked on a tribute tour to Lynyrd Skynyrd. Judith took issue with their use of the band's name and sued them in the Southern District. This was the Grondin case, which ended with the Consent Order at issue on this appeal.

         The Consent Order. The Consent Order restricts how the parties to the Grondin lawsuit, including Pyle, can use, among other things, the name Lynyrd Skynyrd, biographical material of Van Zant, and the history of the Lynyrd Skynyrd band, but permits the parties, among other things, to exploit their life stories and portray their experiences with the band in movies. We set forth below and analyze the key language of the parties' settlement agreement, which was so-ordered by the District Court and became the Consent Order we consider here as the basis for the District Court's injunction.

         The film. Cleopatra Records, Inc., founded and co-owned by Brian Perera ("Perera"), is a Los Angeles-based independent recording label. Sometime after its formation, Cleopatra Records entered the film business. In early 2016 Perera decided to make a film about Lynyrd Skynyrd and the 1977 plane crash (the "Film"). Ultimately, Pyle signed a contract with Cleopatra Records, Inc., in which he and Cleopatra Records agreed to the following:

• Pyle would be entitled to 5 percent of the Film's net receipts;
• The Film would be "based on the story of Lynyrd Skynyrd's 1977 plane crash and the events surrounding it" and would be "told through the recollections and life experiences of" Pyle;
• Pyle would narrate the Film, participate in on-camera interviews for the Film's bonus materials, contribute an original song to the Film's score, and have a cameo appearance in the Film; and
• Pyle would receive a "Consultant" or "Co-Producer" credit in the Film.

         Joint App'x 2332-33.

         Plaintiffs' cease and desist letter. In July 2016, after learning of the Film from press releases, the Plaintiffs sent a cease and desist letter informing Cleopatra that it was "not authorized to make a film which either purports to be or is about the history of the Band, in whole or in part [and] not authorized to use the name, likeness, portrait, picture or biographical material of Rossington, Van Zant or Gaines in any manner." Joint App'x 2164. The Plaintiffs requested a copy of the script and said that if it proved to be the life story of Pyle and was "in no way a history of the Band," they might reevaluate their position. Id.

         Cleopatra responded by requesting a copy of the Consent Order and asserting that it was not subject to any agreement with Plaintiffs and that it had "a First Amendment right to produce and distribute a dramatic film depicting, describing, and/or based upon true, historical events, as it sees fit." Id. at 2424. In the month following its response, Cleopatra also inquired of Judith whether she had any interest in participating in the Film, but that inquiry petered out without a firm reply.

         The Film's final script. The District Court observed that the "Film's final script focuses principally on Pyle, his relationship with the Lynyrd Skynyrd band members, particularly Van Zant, and events during and immediately following the 1977 plane crash." SPA 17. It noted that the script included scenes of the band performing at a concert, scenes of the band "cavorting," flashbacks of when Pyle met and joined the band, and scenes preceding, during, and subsequent to the plane crash. Pyle himself described the Film as "a compression of - of our life as a band." SPA 17. He also described it as "MY story - [the Film] is not just about the plane crash but also about my personal relationship with the genius that was Ronnie Van Zant, whom I loved like a brother and still miss to this day." Joint App'x 2341.

         Ultimately, the District Court found that the Film is a "film about Lynyrd Skynyrd," and based its finding on the following: the script; the factual information provided by Pyle; the draft titles for the Film that all "evoke[d] the Lynyrd Skynyrd legacy," and the Court's finding that Perera was an unreliable witness who appeared to be attempting to evade rather than abide by the Consent Order. Van Zant, 270 F.Supp.3d at 667.

         The Plaintiffs' lawsuit. In April 2017, the Plaintiffs averred, they learned from a news article that Cleopatra had gone forward with the Film, titled "Street Survivors: The True Story of the Lynyrd Skynyrd Plane Crash."[2] Id. Filming had begun that month, and principal photography was completed in mid-May 2017. The Plaintiffs initiated the instant action on May 5, 2017. By that date, Cleopatra had spent approximately $1.2 million on the Film.

         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. It reasoned that because (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 violated the Consent Order. Van Zant, 270 F.Supp.3d at 672-76. The District Court dismissed the Plaintiffs' request for a permanent injunction against Pyle individually because he had no possession of or legal rights to the Film.[3] Finally, the District Court found that the Plaintiffs were entitled to reasonable attorneys' fees.

         The District Court entered the injunction against Cleopatra and others on September 13, 2017, and awarded judgment to the Plaintiffs against Cleopatra and Pyle, jointly and severally, for attorneys' fees and costs in the amount of $632, 110.91 plus any ...


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