Colorado Judge Ignores First Amendment, Allows Prior Restraint In Banning Aretha Franklin Film

from the not-how-it-works dept

Late last week, singer Aretha Franklin succeeded in convincing a judge in Colorado to stop the Telluride Film Festival from screening the documentary Amazing Grace — a concert film shot by Sydney Pollack that was actually filmed back in 1972, but was never shown. Franklin, of course, has no copyright in the film, but argued in her injunction request that she had an agreement with Pollack not to use the film without her authorization. From the complaint:

Ms. Franklin has never given permission for the use of this footage in any commercial context and has not authorized the public release of the footage. The footage was taken with the express understanding that it would not be used commercially without agreement and consent by Ms. Franklin.

Franklin argued that part of the agreement between Warner Bros., which held the rights to the film, and Alan Elliott, who apparently purchased those rights from WB, was that Elliott would then obtain all the necessary “authorizations, consents and releases and pay all re-use fees and other compensation required by applicable collective bargaining or individual contracts or otherwise required by law.” While parts of the complaint hint at possible copyright claims, there really is none here, which is why the actual counts in the complaint do not mention copyright. Instead, they lean heavily on the (already troublesome) concept of publicity rights, as well as an anti-bootlegging law, which makes little sense, since the video is far from a bootleg.

As noted above, amazingly, the judge, John Kane, very quickly obliged and issued a short injunction barring the showing of the film. There is basically no discussion of the issues at all. Rather, Judge Kane merely repeats verbatim the arguments made by Franklin and then orders the injunction, blocking the showing of the movie.

This is ridiculous. As Eriq Gardner at the Hollywood Reporter lays out in great detail, it is difficult to see how this is possible under the First Amendment. When we’re talking about speech — even defamatory speech — courts cannot issue injunctions, because that’s prior restraint. There may be other remedies, but it seems dangerous to argue that a publicity rights claim can lead to an entire film being blocked:

In Colorado, a plaintiff can’t prevail on a publicity rights claim if a defendant’s use of the plaintiff’s name and likeness is privileged under the First Amendment. That much is clear by prior cases. The state’s Supreme Court has held the analysis turns on two issues ? whether the use is primarily commercial or noncommercial and whether such use reasonably relates to a publication concerning a matter that is newsworthy or of legitimate public concern. Feature films are almost always deemed noncommercial (as opposed to, say, an advertisement) while the public concern of Amazing Grace is a toss-up.

Even if Franklin wins this analysis and shows she has a likelihood of prevailing in her lawsuit, under the proper standard of law, she then needs to demonstrate “irreparable harm” to obtain an injunction. In past court cases, judges have refused to enjoin works even when defamation can be shown or even when someone’s privacy rights are being violated. Publicity rights should theoretically evoke an even higher bar because what’s being protected is commercial use of their identity.

Even worse, the judge relies on that agreement between Warner Bros. and Elliott concerning Elliott’s requirement to get permission. But the actual lawsuit here is against neither WB nor Elliott… but against the Telluride Film Festival, which is not a party to that agreement and thus should not be bound by it. So, even if one were to argue that Elliott had somehow waived his First Amendment rights in signing that contract, that says nothing at all about Telluride’s.

The expansive reading of the situation by the judge is really dangerous. As Gardner points out, such a reading of publicity rights laws could allow celebrities to block reporters from writing about them by claiming it is violation of their rights. Furthermore, considering the First Amendment questions at play here, it is even more troubling that Judge Kane doesn’t even mention the First Amendment at all, nor does he explore the issue of prior restraint. Even more bizarre? Despite the lack of any copyright claim, the judge seems to focus on the lack of “fair use” for why he’s shutting the film down:

A film that essentially recreates the entire concert experience is not fair use of this footage.

Again, the complaint doesn’t even make a copyright claim, so it makes no sense to do a fair use analysis in the first place, and even if there was such a claim, a fair use analysis requires a lot more than just saying “hey, it’s not fair use.” You have to at least do a four factors analysis. But, again, that’s neither here nor there since there was no copyright claim in the first place.

And, unfortunately, since the Telluride Film Festival is now over, it’s not clear if the festival will appeal this ruling, which will keep it busy in court for no clear benefit. But, in the meantime, the ruling has scared off multiple other festivals that had planned to show the film. As Gardner points out, all of this prior restraint was because Judge Kane couldn’t even be bothered to realize who the defendant was, nor did he appear to recognize a blatant case of prior restraint when it landed on his desk:

Judge Kane has done a disservice by issuing a hasty ruling on a last-minute injunction bid ? telling THR that this one was an easy call because producer Alan Elliott needed Franklin’s permission. Except that’s not what he was being asked to adjudicate! Elliot wasn’t the defendant after all. Instead, film festivals (and distributors and news organizations) now have to worry about prior restraints on use of a celebrity’s likeness and name. And sorry, Aretha, but this is hardly good news for artists who often use the names and likenesses of other artists in their creative endeavors. If she had made a deal that gave her the copyright on the footage ? meaning the ability to control reproduction and distribution ? that would be one thing; Here, she’s attempting the ride the same vehicle that Lindsay Lohan attempted to use to stop a Pitbull song.

I agree with Gardner that this is a horrible ruling, from a judge who seemed to be in a rush to agree with Franklin, without even realizing what the issues were or who the parties were in court (and if they were subject to the contract). The only “saving grace” is that this ruling is at the district court level, rather than appeals court where it would become the rule for the circuit — but it’s already leading to prior restraint and scaring off film festivals from showing the film. And, you can bet that this case will be cited by others looking to use publicity rights to censor content in violation of the First Amendment.

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Companies: telluride film festival, warner bros.

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Comments on “Colorado Judge Ignores First Amendment, Allows Prior Restraint In Banning Aretha Franklin Film”

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Anonymous Coward says:

An intellectual property maximalist getting their way by using their best tactic, sue a target who will surrender to their demands, especially if they are not the one responsible for what they are suing over. Suing somebody who has good reason to fight back, and who is doing what annoys them, might mean that they might end up losing some of the control that they think they should have over something.

Coyne Tibbets (profile) says:

Breach of contract

Sorry, this one is over the top. Assuming the filing is accurate, the owner/assignee of the film had an affirmative contractual duty to obtain Franklin’s permission before showing it; and possibly to make payments that were never made. This takes it out of the realm of IP law and into the realm of contracts–and breach of contract.

Elliot, who is the putative assignee, may not have been told of this when he purchased the rights, which actually makes WB the party that committed the breach. But if Elliot were to be allowed to show it, the specter of irremediable harm raises its head, also know in our world as, “Ha, ha! We already showed it! What are you going to do about it?”

Fait accompli. Blocked before showing, Franklin has leverage over Elliot (and possibly WB, which I suspect failed to disclose the duty to Elliot). They’re cornered: it must be resolved before showing. After showing: WB and Elliot can drag out the court arguments for years; gee, where did their urgency go?

Brought to a judge’s attention in time, an incipient contract breach promising irremediable harm will always get an injunction.

Anonymous Coward says:

Re: Breach of contract

…But the actual lawsuit here is against neither WB nor Elliott… but against the Telluride Film Festival, which is not a party to that agreement and thus should not be bound by it…

If there is a contract in front of the judge the judge has to decide based on the contract’s contents and it’s signatories (or their legal agents). The injunction is proper to allow the issue(s) to be sorted out. Unless the contract has an assignment clause it is not binding or enforceable to anybody who is not named or a signatory to the contract.

The key thing here is how Telluride knew of the film. At some point somebody or some catalog had this film listed or otherwise represented it as available. So the breach of contract claim might apply to other folks as well.

Coyne Tibbets (profile) says:

Re: Re: Breach of contract

Okay, yes, mea culpa, it’s Telluride that was sued, not Elliot or WB. It changes nothing: It was Telluride that was about to cause the breach.

WB apparently had an agreement with Franklin. That’s what the lawsuit says. And part of the agreement was that WB had a duty, and another part of the agreement was that WB had to pass that same duty on to anyone it sold any rights to; and that, should it happen, that party in turn had a duty to pass that duty on to anyone it sold any rights to. That’s what “and assignees” means, it means that you can’t shirk the responsibility by selling the rights to your shell corporation so the shell corporation can do what it wants.

So however Telluride got the rights, it has that duty, because it is an assignee. Maybe it wasn’t told of the duty, in which case Elliot or WB already breached the contract. That does not change Telluride’s role as assignee; the contract binds it whether it knew about the duty or not.

Someone sells you a property, and there’s an easement on the property. You didn’t find that out, for whatever reason, and the seller carefully neglected to mention it. But when the owner of the easement shows up to claim his right, you are stuck: neither your lack of care nor the seller’s breach overcomes the right of the easement owner.

Franklin owns, or claims to own, the equivalent of an easement in this property. If her lawsuit is true, she is entitled to relief because of the right that she owns: It’s not a First Amendment issue and not a copyright issue in that case; it’s a contract issue.

(Copyright is about binding people you do not have a contract with, in order to protect your property rights. That’s very different than where you have an explicit contract right.)

It is entirely premature to say, “She took their First Amendment right,” if her property right is antecedent. It is just as premature to say this is a copyright issue, even though there’s a touch of that claim in the lawsuit. The primary claim is an issue of property ownership that, as stated, means they owe her action before they can take action.

I don’t see what is so hard to understand about this.

Anonymous Coward says:

A) It's not YOUR "publicity" to dispose of. B) Doesn't affect you at all, you lose nothing. C) Telluride has no First Amendment right to monetize the fame of Franklin.

The over-arching principle is that when your “speech” involves others, they get a say. Telluride, a business, needs an actual positive right here, not just that can get away with it, and Franklin, a person, can’t stop it. It IS an easy call.

Gave Techdirt a topic! When saw it yesterday, figured you’d get to crow over more loss of personal privacy to greedy commercialism, but lucky this judge isn’t a maniac. I think that’ll become clear trend: we don’t need any more grifters on celebrity.

That Anonymous Coward (profile) says:

Isn’t it nice to see how the law for the rich & famous is different than what everyone else gets?

The fact they are trying to paint this as a copyright issue is a nice smokescreen to add to the illusion that copyright is so under attack.

Imagine if there was just a central location where all of these alleged contractual obligations had to be disclosed when someone sought to obtain rights to use material. You know, like some sort of office of copyright so people who wished to used materials didn’t have to go on snipe hunts trying to track down who controls what and who has extra requirements. But then this movie wouldn’t have been made, and Ms. Franklin wouldn’t be getting a new publicity bump. Who knows maybe she can carve enough cash out of the film to stay up to date on her taxes.

Anonymous Coward says:

Re: Re:

You know, like some sort of office of copyright so people who wished to used materials didn’t have to go on snipe hunts trying to track down who controls what and who has extra requirements.

When copyright is controlled by the traditional middlemen, it is more like a snark hunt, with a similarly informative map.

That Anonymous Coward (profile) says:

Re: Re: Re:

How much of this crap would be avoided (there are several other less legal case based examples) if all of the information was required to be kept on file with the Copyright Office?

It would clear up a whole bunch of problems about who owns what, and who has which tiny pieces carved off… rather than praying you can get a monolith to look in their paper files to see if they even have the rights.

Copyright is supposed to benefit the public in return for their special rights, with rights come responsibilities.

Anonymous Coward says:

Re: Re: Re: Re:

This has been written about much better elsewhere.
All the contracts are in existence, Aretha’s was lost at first, and unavailable at a hearing a while back. The film lost that one, but the contract has been found and that is why they are trying to screen it again, as they are sure Aretha’s part was ‘work for hire’. Look it up, there’s much more to it.

Anonymous Coward says:

This is not unusual, or unfair. Courts will always lean towards maintaining the status quo until the claim has been considered and dealt with in its entirety.

Interim injunctions do not require a particularly high bar. Just a ‘prima facie’ case needs to be established.

This recognises that, if no injunction were imposed, the film would be distributed and would render the claim pointless, without the claimant having an opportunity to argue it.

It also recognises that, once the film is out there, is cannot be reigned back in should the claimant be successful.

In Australia, the claimant often seeks an ‘undertaking as to damages’ when an injunction is imposed. This means that, if the claimant is ultimately unsuccessful, they will have to cover the damages suffered to the defendant as a result of the temporary injunction being imposed.

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