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Ronnie Van Zant, Inc. v. Pyle

United States District Court, S.D. New York

August 23, 2017

RONNIE VAN ZANT, INC., et al., Plaintiffs,
ARTIMUS PYLE, et al., Defendants.

          Attorneys for Plaintiffs OTTERBOURG P.C., By: Richard G. Haddad, Esq., Sandor Frankel, Esq., \Pauline McTernan, Esq.

          Attorneys for Defendants Cleopatra Records, Inc. and Cleopatra Films MANDEL BHANDARI LLP By: Evan Mandel, Esq. Robert Glunt, Esq.

          Attorney for Defendant Artimus Pyle Defendant, pro se


          ROBERT W. SWEET U.S.D.J.

         This action was tried before the Court between July 11 and July 12, 2017. Based upon all the prior proceedings, the findings of fact, and conclusions set forth below, judgment will be entered in favor of Plaintiffs Ronnie Van Zant, Inc., Gary R. Rossington ("Rossington"), Johnny Van 2ant, Barbara Houston, as the Trustee of the Allen Collins Trust, and Alicia Rapp and Carinna Gaines Biemiller, as the personal representatives of the estate of Steven Gaines (collectively, the "Plaintiffs"), granting a permanent injunction against Defendants Cleopatra Records, Inc. ("Cleopatra Records"), and Cleopatra Films (together with Cleopatra Records, "Cleopatra") and award of costs and attorneys' fees against Cleopatra and Artimus Pyle ("Pyle, " and together with Cleopatra, the "Defendants"). In addition, Plaintiffs' motion for an adverse inference is granted, and Cleopatra's motions for summary judgment and judgment as a matter of law are dismissed as moot.

         Findings of Fact

         I. Lynyrd Skynyrd and 1977 Plane Crash

         Lynyrd Skynyrd was a rock band formed in Jacksonville, Florida in the 1960s. (Tr. 8:4-19.[1]) The band's founding members were Ronnie Van Zant ("Van Zant"), Rossington, and Allen Collins ("Collins"). (Tr. 8:20-22, 69:25-70:1.} Pyle joined as the band's drummer in 1975. (Tr. 11:4-7, 70:2-6.} During the 1970s, Lynyrd Skynyrd became a popular band, selling millions of albums and writing classic songs such as "Sweet Home Alabama" and "Free Bird." (Tr. 10:2-11:2.) During this period, Van Zant was the band's lead singer and primary songwriter. (Tr. 11:12-24.) The band's final album, entitled "Street Survivor, " was released in 1977. (Tr. 10:16-22.)

         On October 20, 1977, the plane in which the band and its support team were traveling crashed in Mississippi. (Tr. 12:4-12.) As a result of the plane crash, Van Zant, Gaines, Gaines' sister, a member of the support crew, and the plane's two pilots died. (Tr. 12:4-13:2.) The remainder of the plane's passengers, including Rossington and Pyle, were critically injured but survived. (Tr. 14:9-21.)

         In the aftermath of the crash, Rossington, Collins, and Van Zant's widow, now Judy Van Zant Jenness ("Jenness"), entered into what has since been termed a "blood oath, " under which the three of them decided that no one would ever perform as Lynyrd Skynyrd again. (Tr. 15:4-24.} Gaines' widow, now Teresa Gaines Rapp ("Rapp"), and band keyboardist Billy Powell also witnessed the blood oath. (Tr. 15:14-17.) For ten years, former band members performed with other bands and under other band names, but no performances took place under the name "Lynyrd Skynyrd." (Tr.15:25-16:6.)

         II. 1988 Action and Consent Order

         In 1987, to commemorate the ten-year anniversary of the crash, the band's surviving members reunited for a tribute tour to Lynyrd Skynyrd. (Tr. 16:7-18.) Jenness and the band members on the tribute tour disputed the use of the Lynyrd Skynyrd name, which culminated in a lawsuit, Grondin et ano. v. Rossington , No. 88 Civ. 3192 (RWS), in which Jenness sought to enjoin the use of the band's name in performance (the "1988 Action"). (Tr. 16:23-17:15.) On October 11, 1988, the 1988 Action was resolved by the parties' entry into a Consent Order, Judgment, and Decree (the "Consent Order, "Pls.' Ex. 1). (Tr. 17:19-18:13.) Pyle, a defendant in 1988 Action and who was represented by counsel throughout the lawsuit and during the signing of the Consent Order, was one of the Consent Order's signatories; he described the aftermath of the Consent Order as everyone "on the same page" and everything was "copacetic, " although he also notated adjacent to his signature on the Consent Order the words "Under Protest." (Consent Order, at 30; Deposition Transcript of Artemis Pyle dated June 20, 2017 ("Pyle Dep.") 25:8-15, 29:2-21, 30:10-23, 34:13-16.)

         The Consent Order set forth, amongst many things, restrictions as to how the parties in the 1988 Action could use the name Lynyrd Skynyrd, the name, images and likeness of Van Zant and Gaines, or the history of Lynyrd Skynyrd. As relevant to the instant litigation, the Consent Order contained the following provisions:

• "[A]11 corporations owned or controlled by [any of the parties in the 1988 Action], and all agents, attorneys, employees, officers, directors, successors, assigns, and all others in concert or participation with them, are hereby jointly and severally permanently restrained and permanently enjoined from doing any of the following:
o "Using or purporting to authorize the use of the name Lynyrd Skynyrd' or any logos, trade or service marks associated with the name 'Lynyrd Skynyrd, ' in the entertainment industry or otherwise, except as specifically authorized herein;" (Consent Order ¶ 1 (ii))
o "Using the name, likeness, portrait, picture, performances or biographical material of Ronnie Van Zant ... or Steven Gaines . . . for any purpose whatsoever, except as specifically authorized herein." (Id. ¶ 1 (iii).)
• "[The 1988 Action parties] shall have the right to use the words 'Lynyrd Skynyrd' as part of a name . . . When the name 'Lynyrd Skynyrd' is followed immediately thereafter by, and includes, the calendar year at the time of such use . . . . The calendar year shall not be included in parentheses and shall be of a size, type, and prominence equal in all respects to the words Lynyrd Skynyrd.'" (Id. ¶ 2(a) (the "Date Requirement"}.)
• For purposes of live musical performances, either both Rossington and Collins must appear on stage together as active players for substantially the entire duration of the live performance, or Rossington or Collins must appear along with two of the following four musicians: Pyle, Leon Wilkeson, Billy Powell, or Ed King. (Id. ¶ 2(c) (the "Rule of Three").)
• "Each of the [1988 Action parties] shall have the right to exploit his (or with respect to the Estates, the applicable decedent's) own respective life story in any manner or medium, including without limitation, in books or other print publications and in theatrical feature or television motion picture, without obligation, financial or otherwise, to any other party hereto. In such connection, each of the foregoing shall have the right to refer to 'Lynyrd Skynyrd' and related matters and to describe and portray his experience (s) with 'Lynyrd Skynyrd, ' provided that no such exploitation of life state rights is authorized which purpose to be a history of the *Lynyrd Skynyrd' band, as opposed to the life story of the applicable individual." (Id. ¶ 3.)
• "There shall be no exploitation in whole or in part of the history of the Lynyrd Skynyrd band without the prior written approval of Rossington, Collins and [Van Zant's] Estate. In the event Rossington or Collins dies or is incapacitated, his respective estate or other legal representative shall be entitled to exercise the approval rights granted pursuant to [this paragraph.]" (Id. ¶ 4.}
• "No [defendant in the 1988 Action] shall make any use of the name, likeness, portrait, picture, or biographical material or Van Zant or of Gaines except pursuant to [certain enumerated conditions, such as record merchandising and particular tribute tours]." (Id. ¶ 5.)
• "[Defendants in the 1988 Action] shall not be in violation of this Order if a third party fails to comply with the terms herein contained; provided that, upon learning of each such failure, the [1988 Action defendants] immediately notify [the 1988 Action plaintiffs] and . . . immediately notify such third party of the applicable terms hereof and demand prompt compliance with all such terms. In no event shall the [1988 Action defendants] implicitly or through inaction authorize the violation of the terms hereof by any third party." (Id. ¶ 26.)
• "This Court shall retain jurisdiction over this action and over the parties for the purpose of enforcing the provisions hereof." (Id. ¶ 33.)
• "An amount equal to actual and reasonable attorneys [sic] fees shall be award to the prevailing party in any proceeding brought to enforce the terms and conditions of this Order." (Id. ¶ 34.)
• "The parties hereto may unanimously agree to amend their respective rights and obligations pursuant to this Order, without seeking further intervention of the Court, provided such shall be in a writing signed by all parties." (Id. ¶ 37.)
• Provisions containing formulas detailing the respective parties' rights to royalties from Lynyrd Skynyrd music, merchandise, and other proceeds. (See id. ¶¶ 10-12, 14-16, 21.)

         III. Consent Order Aftermath

         Following the Consent Order, the surviving members of Lynyrd Skynyrd, including Pyle, continued to perform under the "Lynyrd Skynyrd'' name. (Tr. 19:8-18; Pyle Dep. 34:3-24, 41:23-43:3, 104:18-105:16.) Pyle ceased performing with the surviving Lynyrd Skynyrd band in 1991, at which point he signed a termination agreement. (Tr. 19:19-25; Pyle Dep. 35:21-37:24; see Pls.' Ex. 61.)

         While the conditions of the Consent Order were to distinguish between the pre-crash and post-crash band and avoid confusing the fans, not every provision has been consistently followed since 1988. (Tr. 24:16-19.) Since around 1992, the band has performed using the name Lynyrd Skynyrd but not in accordance with the Date Requirement provision of the Consent Order, a provision that stopped being followed after the still-performing band members asked Jenness and Rapp for permission, to which they acquiesced. (Tr. 24:20-25:5, 54:3-56:17.) The Rule of Three has not been followed since Collins' death in the early 1990s, a requirement made more difficult with the subsequent deaths of Leon Wilkeson and Billy Powell and departures of Pyle and Ed King. (Tr. 22:4-23:5.) In light of these facts, Jenness and the remaining band members agreed that the Rule of Three requirement would be satisfied by the presence of Rossington. (Tr. 23:6-12.) Royalty payments have also been modified over the years. (Tr. 53:1-3.)

         These modifications were neither executed by agreement between the Consent Order parties nor sought from the Court. (Tr. 49:6-14.) To the extent that modifications were objected to, such objections were resolved. (Tr. 87:18-22, 98:13-15.) In the years following the Consent Order, Pyle has never objected to or taken action based on modifications made to the terms of the Consent Order, and has continued to receive royalty payments. (Tr. 23:15-17, 25:12-17; Pyle Dep. 34:22-24, 41:23-43:3, 65:1-23; 104:18-105:16.) Over the years, Plaintiffs have periodically brought injunction suits against Consent Order signatories, including Pyle, and third parties at actual or perceived breaches of the Consent Order's strictures. (Tr. 25:18-27:10, 97:24-98:12; see Pls.' Exs. 2-6.)

         IV. Cleopatra's Film

         Cleopatra Records is a Los Angeles-based independent record label founded in 1992. (Tr. 115:4-19; Deposition of Brian Perera dated June 9, 2017 ("Perera Dep.") 8:21-22.) Cleopatra Records has a film component that, until around 2016, was run through an affiliate division, Cleopatra Films[2], and today is run through an affiliate business, Cleopatra Entertainment LLC, which Brian Perera ("Perera"), founder, president, and co-owner of Cleopatra Records, also operates with the same employees and out of the same office.[3] (Perera Dep. 9:10-14, 9:18-25, 13:19-14:8; Tr. 118:14-16; see Tr. 145:24-146:1 (describing the "Cleopatra entities" as having paid for the "plane crash film").}

         In early 2016, Cleopatra decided to pursue making a feature-length film based on the 1977 Lynyrd Skynyrd plane crash (the "Film").[4] (Tr. 119:1-20.) Around that time, Perera hired Jared Cohn ("Conn"), a director and screenwriter, to work on writing and directing the proposed Film. (Perera Dep. 7:22-25; Tr. 131:8-132:3; Defs.' Ex. 805.) Cohn was paid by Cleopatra and reported to Perera but was not a Cleopatra employee. (Tr. 180:16-21; Deposition of Jared Cohn dated June 26, 2017 ("Cohn Dep.") 31:16-21.) Around the same time, Perera reached out and met with Pyle in Nashville, TN, to discuss the project; Pyle expressed interest in the Film, although there was no discussion as to Pyle's role, if any, in it. (Tr. 121:6-123:18.)

         In June 2016, Cleopatra paid Pyle to fly out to Los Angeles to discuss his involvement with the Film. (Tr. 123:19-25, 124:12-22; Perera Dep. 42:13-43:15, 44:24-45:2.) Emails between Perera, Cohn, and Tim Yasui ("Yasui"), Cleopatra's vice president, establish that Pyle was being brought in to work on the script with Cohn, (Pls.' Ex. 15), take publicity photos, (Pls.' Ex. 17), and get video recordings of Pyle from which to create the Film's screenplay, (Pls.' Ex. 16).

         On June 7, 2016, while meeting in Los Angeles, Pyle signed an agreement with Cleopatra that entitled him to 5% of the Film's net receipts, which would be "based on the story of Lynyrd Skynyrd's 1977 plane crash and the event surrounding it, " on which he would receive a "Consultant" or "Co-Producer" credit; Pyle also contracted to narrate the Film, make a cameo appearance in the Film, and contribute an original song to the Film. (See Defs.' Ex. 9.) During this meeting, Pyle did not tell Perera about the Consent Order, but did inform him of the litigious history between those historically connected to Lynyrd Skynyrd and that, should Pyle's involvement with the Film imperil its production, Pyle would "rip . . . up" the contract.[5](Tr. 128:12; see also Tr. 128:7-19; Perera Dep. 49:17-21, 50:2-51:18, 64:14-18, 150:13-151:12.) While Pyle was in Los Angeles, Cohn interviewed and video-recorded Pyle for eleven hours. (Tr. 142:23-143:6; Cohn Dep. 42:24-43:2.) Around the end of June 2016, Cleopatra put out press releases advertising Pyle's involvement as a co-writer and co-producer of the Film. (See Pls.' Exs. 49-50.)

         V. Plaintiffs' Cease and Desist Letter

         On July 15, 2016, Plaintiffs sent Cleopatra a cease and desist letter after learning through news articles that Cleopatra intended to produce a movie being co-written by Cohn and Pyle entitled "Free Bird" about Lynyrd Skynyrd and the 1977 plane crash.[6] (See Pls.' Exs. 7-8; Defs.' Exs. 1, 55; Tr. 27:11-29:17.) In the letter, Plaintiffs requested a copy of the Film's script and noted various restrictions based on terms of the Consent Order. (See Pls.' Ex. 7.) On July 19, 2017, Cleopatra requested a copy of the Consent Order and declared its First Amendment right to make its film. (Defs.' Exs. 2-3.) On July 22, 2016, Plaintiffs mailed Cleopatra a copy of the Consent Order, which Cleopatra received shortly thereafter.[7] (Tr. 134:8-15, 160:9-11; Defs.' Ex. 4; Pls.' Ex. 9.} Perera, Cohn, and Cleopatra's counsel, Evan Cohen ("Cohen"), read and discussed the Consent Order.[8] (Cohn Dep. 13:17-23, 14:16-15:3, 16:13-22, 17:12-21; Perera Dep. 108:22-110:15.)

         On August 5, 2016, Conn, in consultation with Perera, messaged Jenness over Facebook and invited her to Los Angeles to "talk about the movie project"; the goal was to determine a way to address the cease and desist letter Cleopatra had received. (Pls.' Ex. 10; see Tr. 31:2-33:1, 62:21-63:16, 89:18-20, 134:25-135:13; Cohn Dep. 99:7-9, 99:13-19, 104:5-13.) Jenness responded by Facebook message and requested Cleopatra to "send an email explaining and outlining [Cleopatra's] plans and how [Cleopatra] see[s] it involving [her]." (Pls.' Ex. 10.) After conferring with Cohen, Cleopatra chose not to respond. (Tr. 135:21-136:4; 221:1-223:25.) Neither Jenness, Rossington, nor Collins' estate discussed the Film further with Cleopatra. (Tr. 46:6-10, 91:22-25.)

         VI. Cleopatra's Film Production Post-Cease and Desist

         Following receipt of the cease and desist letter, Cleopatra continued to work on producing its Film, but stopped publically referring to Pyle as a writer or producer of the Film. (Tr. 141:16-142:4.) For almost the next year, Cohn wrote over a dozen drafts of the Film's script. (See Defs.' Exs. 301-317.) Evidence adduced established that Cleopatra involved Pyle in many aspects of its Film production process, although Pyle neither did any of the actual script writing nor had final control over the Film's content, which is maintained by Cleopatra. (See Tr. 139:9-10, 146:13-147:25; Pyle Dep. 88:19-21.)

         Pyle regularly texted or called Cohn to relay historical information, sometimes directly, sometimes through intermediaries at Cleopatra, which Cohn would incorporate into his written work.[9] (See Pls.' Exs. 20, 22, 25, 26; Cohn Dep. 22:8-22, 43:25-44:9). Around August 8, 2016, Pyle received a copy of Cohn's fifteen page outline for the Film, which Pyle reviewed and offered "minor" comments, (Pls.' Ex. 22; see Pls.' Ex. 23; Cohn Dep. 63:16-64:14), and received copies of the Film's script in September, October, and November 2016, (see Pls.' Exs. 27, 28, 30; Tr. 169:3-6). Pyle discussed his notes and revisions with Cohn on at least some of these drafts. (See Pls.' Exs. 29, 31, 32; Tr. 197:9-24.) Cohn's script drafts continued to incorporate feedback from Pyle through early 2017 and the Film's filming.[10] (See Pls.' Ex. 34; Tr. 200:15-20; Cohn Dep. 46:17-48:7.)

         Cleopatra solicited Pyle's views on casting and costumes as well. Around February 2017, during the Film's casting and actor auditions, Pyle provided notes and thoughts, which Cohn viewed as "helpful." (Pls.' Ex. 34; see also Pls.' Exs. 33, 35; Tr. 204:15-23; Cohn Dep. 49:20-50:10.) In March 2017, Pyle discussed costuming selections with the Film's costume designer. (See Pls.' Exs. 37, 38; Tr. 212:16-18; Cohn Dep. 48:11-15.) In April 2017, Cleopatra paid for Pyle to fly to Los Angeles to participate in a table read with actors selected for the Film, during and after which Pyle provided feedback on the accuracy of the portrayals, feedback which Cohn incorporated into the Film's script. (See Pls.' Exs. 39-41; Tr. 214:23-215:11; Pyle Dep. 81:6-83:6; Cohn Dep. 58:12-59:21.)

         Pyle has also provided video footage for a cameo appearance in Cleopatra's Film and worked on original music for the Film's soundtrack. (See Tr. 201:4-10, 216:10-25; Cohn Tr. 60:18-24; Pyle Dep. 76:19-25, 77:6-12.)

         VII. Cleopatra's Film

         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. (See generally Pls.' Ex. 13.) The script broadly includes: scenes of the band performing at a concert and playing well-known Lynyrd Skynyrd songs, (see id., at ¶ 000051-56}; post-concert and general scenes of the band cavorting, (see id., at ¶ 000056-69, 81-84}; flashbacks to when Pyle first met and joined the band, (see id., at ¶ 000084-91); and scenes just before, during, and shortly after the band's plane crash, (see id., at ¶ 000070-81, 91-155}. As Pyle summarized it, the Film "was a compression of - of our life as a band." (Pyle Dep. 103:16-17; see also Tr. 227:4-6 (noting that the Film is not a "life story").)

         Pyle is the main character of the Film, although Van Zant has much of the dialogue and the remaining band members, including Gaines and Rossington, are featured and have dialogue. (See generally Pls.'Ex. 13.) Portions of the script are historically inaccurate, either because the chronology of events depicted is incorrect, such as instances of Van Zant's infidelity or a scene of Van Zant breaking a glass bottle over a person's head the night before the plane crash, or because of factual inaccuracy, such as Pyle encountering an alligator after fleeing from the plane crash wreckage.[11] (Pyle Dep. 95:20-97:7, 97:22-101:22.)

         Cleopatra intends to place cards in the Film's opening credits to indicate that the film was not authorized by Lynyrd Skynyrd or any current or ...

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