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,
CLEOPATRA RECORDS, INC, CLEOPATRA FILMS, a division of Cleopatra Records, Inc, Defendants - Appellants, 
Argued: May 10, 2018
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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
• 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.
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.
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.
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.
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.
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." 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
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. Finally, the District Court found that the
Plaintiffs were entitled to reasonable attorneys' fees.
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 ...