How Not To File A Lawsuit, Beach Boy Style
from the california-dreamin' dept
And here we are, once again, discussing California publicity rights in a lawsuit that seems so ridiculous it just leaves you shaking your head. It involves Mike Love, of the Beach Boys, who apparently got quite upset that former Beach Boy Brian Wilson released an album in the UK a few years back. Wilson released the album in the UK, like others have, by doing a deal with the UK newspaper The Mail, which distributed copies of the album to all its subscribers in the UK and Ireland. Apparently 425 copies of the paper were distributed in the US… but none with the CD. 18 copies of the paper (again, without the CD) were distributed in California.
Mike Love (who I believe is Wilson’s cousin) holds the trademark on The Beach Boys for use when touring, got upset when he saw that the album cover of Wilson’s album distributed via the newspaper included some small photographs of the old Beach Boys, including some that had Love. And at this point, Love and his lawyers filed lawsuits against everyone for just about anything the could think of:
In response to the English promotion, Love sued a variety of parties for their involvement in the promotion campaign. He sued Wilson; Associated Newspapers Limited (“ANL”), the publisher of Mail on Sunday; BigTime.tv, a British company that licensed and recorded the compact disc; Sanctuary Records Group, Ltd., the entity that owned the rights to the Brian Wilson recordings relevant to this case, as well as Sanctuary Records Group NY, Sanctuary Music Management, Inc., and Sanctuary Music Productions, Inc. (“the Sanctuary defendants”); Jean Sievers, the Lippin Group, Inc., and SOOP LCC, Wilson’s managers and publicist; David Leaf, a writer and producer for Wilson; and Melinda Wilson, Wilson’s wife.
Through a variety of steps, most of these defendants and claims were dismissed, sometimes “with prejudice” which resulted in attorneys’ fees being awarded as well — after the district court determined that the copyright claims “bordered on frivolous and were not
objectively reasonable” and that they “contributed to the
bloat” of a “vastly overpled . . . case.” On top of that, Love made some… um… mistakes (some might call them “lies”), such as first claiming he lived in Nevada, and then after realizing he was trying to use California publicity rights laws, changed the filing to claim that he had “a residence in California.” In doing so, the court “strongly admonished” him for falsely claiming that he was a California resident when he had admitted he really was not.
Then there’s my favorite bit, where he found a guy to swear that he bought the Wilson album on eBay after mistaking it for being a Beach Boys offering. The only problem? The guy who made that declaration was a friend of Love’s lawyer, and the evidence suggested he wasn’t actually confused:
Love responded to criticism by the district court that he had failed to introduce any evidence that Good Vibrations had ever entered the U.S. market by filing a declaration by Steven Surrey that Surrey had bought a copy of Good Vibrations on eBay because he thought it was an official Beach Boys product (“Surrey affidavit”). Because of uncontested evidence that Surrey was a close associate of Love’s attorney and had fabricated his allegation that he was confused by the labeling of Good Vibrations, the district court never considered the Surrey affidavit to have any evidentiary value, and entered sanctions against Love’s counsel.
Rather than thinking that it made sense to perhaps give up this path of protest, Love appealed certain aspects of the district court’s ruling, and an appeals court has now smacked Love down again. The key point: Love is bringing “publicity rights” charges based on California’s publicity rights laws — and yet, everything about the release of this album was in the UK, which has no corresponding publicity rights.
Although California recognizes both a statutory and common law right of publicity, and England recognizes neither, this is not a case of true conflict… California has no interest in applying its law to the conduct in question. None of the parties remaining in this suit is a citizen of California. The misappropriation in this suit occurred almost exclusively in the United Kingdom and Ireland, where millions of copies of the Mail on Sunday and Good Vibrations were distributed…. At most, de minimus conduct occurred in California when a handful of copies of the paper were delivered without the CD, and a handful of copies of Good Vibrations were sent to Wilson’s attorney in California.
The court points out that if this whole thing was legal in the UK, there’s not much for Love to complain about:
Even if California has an interest in protecting the right of an entertainer with economic ties to the state to exploit his image overseas, that interest is not nearly as significant as England’s interest in (not) regulating the distribution of millions of copies of a newspaper and millions of compact discs by a British paper primarily in the United Kingdom
The court also similarly dismisses various trademark claims that Love makes, again pointing out that the UK is not the US. With the court pointing out that there doesn’t appear to be any actual harm in the US, Love tried to claim that his US tour of the Beach Boys had lower than expected ticket sales. The court doesn’t find this to be credible evidence of any harm, seeing as US tour results were unlikely to be impacted by a CD released solely in the UK:
Love’ declaration–that his ticket sales in the United States were lower after the distribution of Good Vibrations, the release of Smile, and the U.S. tour embarked upon by Wilson–is insufficient. Even if, as Love argues, European purchasers of the Mail of Sunday would mistakenly associate the promotional CD with Love, Smile, and the official Beach Boys touring band, it is too great of a stretch to ask us, or a jury, to believe that such confusion overseas resulted in the decreased ticket sales in the United States.
The appeals court also affirms the lower court’s rulings awarding attorney’s fees to some of the parties Love sued. Love, amusingly, tried to argue that even though California’s publicity rights laws allows for attorney’s fees to be awarded, since the court found that law inapplicable due to jurisdiction, that the attorney’s fee provision didn’t apply either. The court brushed that argument aside, pointing out that it was Love himself who brought the action under that law.
All in all, Love seems to have lost badly (now, multiple times) and has to pay attorneys’ fees to some of the parties he sued. Reading the descriptions in the ruling suggest that this lawsuit was about as disastrous for Love as could be.