Cameo Clips

Attorney Fees/Right of Publicity, Trademarks

In a suit over a fundraiser that used the name and image of musician Jim Hendrix, the U.S. District Court for the Western District of Washington awarded the defendants a reduced attorney fees and costs under Washington's right-of-publicity law, and no attorney fees for defending against a federal Lanham Act claim. Experience Hendrix LLC v. The James Marshall Hendrix Foundation, C03-3462Z. A 1996 lawsuit settlement between Jimi Hendrix's father Al ' the heir to Jimi's estate ' and Jimi's brother Leon stated “Leon will not … exploit or attempt to exploit Jimi Hendrix's name, image or likeness on merchandise of any kind, without a written license from [the estate's] Authentic [Hendrix].” Leon later incorporated the non-profit James Marshall Hendrix Foundation. In November 2003, the foundation held a fundraising event that was announced without the estate's knowledge. When the estate filed suit, the court granted the defendants' motion for summary judgment on the estate's right-of-publicity claim and later granted voluntary dismissal of the trademark claims.

The defendants sought $123,353.15 in attorney fees and costs under the Washington Personality Rights Act (PRA), but the district court awarded $52,129.76, in part based on a 50% reduction for “unproductive time [the defendants spent] on unnecessary pleadings. … For example, Defendants needlessly opposed Plaintiffs' motion to voluntarily dismiss with prejudice the claims remaining in the lawsuit. … Moreover, the Court applies the 50% discount because Defendants incurred a significant portion of the fees and costs after the Court's Order of April 15, 2005 dismissing the Washington PRA claim.”

The district court declined to award any attorney fees and costs to the defendants under the Lanham Act based on a finding that the estate's suit hadn't been vexatious, groundless, unreasonable or filed in bad faith. For example, the court noted that the plaintiffs' expert had concluded: “Plaintiffs' filing of the lawsuit and the [unsuccessful] motion for a [temporary restraining order], and the copying of the cease and desist letter to [fundraiser sponsor] Clear Channel, were reasonable actions for a trademark owner to take, especially given that trademark law compels owners to act to prevent confusion from the unauthorized use of a trademark or risk claims of acquiescence, waiver, laches or abandonment.”

The use in a DVD by the band SUM 41 of the group taunting an individual didn't give the individual a viable claim for intentional infliction of emotional distress, the U.S. District Court for the Western District of New York decided. Sudore v. SUM 41, 04-CV-6047T. Michael Sudore had been filmed without consent by SUM 41 while the group “taunted, jeered and heckled him” and pelted him with a hot dog at a baseball game. Sudore filed suit after the band included the footage in a promotional DVD with its “Does This Look Infected?” CD, distributed by defendant Universal Music. Sudore's initial complaint alleged violation of New York Civil Rights Law Secs. 50 and 51 for use of his image “for their pecuniary gain, and to his reputation's detriment, without providing him with just compensation.” Sudore later moved to amend his complaint to add an emotional-distress claim.

The district court explained: “Sudore's [emotional-distress] claim does not appear to be based upon the events at the baseball game, but rather upon the subsequent publication of the video recording … That the claim is based on the publication of the video clip underscores the fact that, as Sudore himself alleges in his proposed Amended Complaint, the defendants' purportedly offensive conduct was commercial in nature and purpose. According to Sudore's Complaint, the SUM 41 defendants cultivated and marketed an image of themselves as a band that embraces and promotes disrespectful, outrageous and disdainful behavior. … To further that image, they and the other defendants made an 'intentional commercial business decision' to include a promotional DVD with their music CD featuring outrageous conduct, including a 24 second clip of Sudore's reaction to the hot dog throwing incident.”

The court went on to note that Sudore was required to establish that the offensive conduct “was done with the intent to cause him 'severe' emotional harm, not that the harm was merely incidental to the commercially-driven conduct. … [But i]n any event, I find that Sudore's claim fails for another reason, that is, his inability to establish that the conduct complained of was sufficiently extreme or outrageous so as to be 'beyond all possible bounds of decency.' … While the conduct is plainly lamentable, I find that throwing a hot dog into the public spectator stands at a baseball game and filming the spontaneous reaction of the individual contacted is no more outrageous than the conduct that other courts have found insufficient as a matter of law; nor do I find that the inclusion of a 24 second video clip of that public incident in an approximately 65 minute promotional video transforms otherwise non-outrageous conduct into outrageous conduct.”

Attorney Fees/Right of Publicity, Trademarks

In a suit over a fundraiser that used the name and image of musician Jim Hendrix, the U.S. District Court for the Western District of Washington awarded the defendants a reduced attorney fees and costs under Washington's right-of-publicity law, and no attorney fees for defending against a federal Lanham Act claim. Experience Hendrix LLC v. The James Marshall Hendrix Foundation, C03-3462Z. A 1996 lawsuit settlement between Jimi Hendrix's father Al ' the heir to Jimi's estate ' and Jimi's brother Leon stated “Leon will not … exploit or attempt to exploit Jimi Hendrix's name, image or likeness on merchandise of any kind, without a written license from [the estate's] Authentic [Hendrix].” Leon later incorporated the non-profit James Marshall Hendrix Foundation. In November 2003, the foundation held a fundraising event that was announced without the estate's knowledge. When the estate filed suit, the court granted the defendants' motion for summary judgment on the estate's right-of-publicity claim and later granted voluntary dismissal of the trademark claims.

The defendants sought $123,353.15 in attorney fees and costs under the Washington Personality Rights Act (PRA), but the district court awarded $52,129.76, in part based on a 50% reduction for “unproductive time [the defendants spent] on unnecessary pleadings. … For example, Defendants needlessly opposed Plaintiffs' motion to voluntarily dismiss with prejudice the claims remaining in the lawsuit. … Moreover, the Court applies the 50% discount because Defendants incurred a significant portion of the fees and costs after the Court's Order of April 15, 2005 dismissing the Washington PRA claim.”

The district court declined to award any attorney fees and costs to the defendants under the Lanham Act based on a finding that the estate's suit hadn't been vexatious, groundless, unreasonable or filed in bad faith. For example, the court noted that the plaintiffs' expert had concluded: “Plaintiffs' filing of the lawsuit and the [unsuccessful] motion for a [temporary restraining order], and the copying of the cease and desist letter to [fundraiser sponsor] Clear Channel, were reasonable actions for a trademark owner to take, especially given that trademark law compels owners to act to prevent confusion from the unauthorized use of a trademark or risk claims of acquiescence, waiver, laches or abandonment.”

The use in a DVD by the band SUM 41 of the group taunting an individual didn't give the individual a viable claim for intentional infliction of emotional distress, the U.S. District Court for the Western District of New York decided. Sudore v. SUM 41, 04-CV-6047T. Michael Sudore had been filmed without consent by SUM 41 while the group “taunted, jeered and heckled him” and pelted him with a hot dog at a baseball game. Sudore filed suit after the band included the footage in a promotional DVD with its “Does This Look Infected?” CD, distributed by defendant Universal Music. Sudore's initial complaint alleged violation of New York Civil Rights Law Secs. 50 and 51 for use of his image “for their pecuniary gain, and to his reputation's detriment, without providing him with just compensation.” Sudore later moved to amend his complaint to add an emotional-distress claim.

The district court explained: “Sudore's [emotional-distress] claim does not appear to be based upon the events at the baseball game, but rather upon the subsequent publication of the video recording … That the claim is based on the publication of the video clip underscores the fact that, as Sudore himself alleges in his proposed Amended Complaint, the defendants' purportedly offensive conduct was commercial in nature and purpose. According to Sudore's Complaint, the SUM 41 defendants cultivated and marketed an image of themselves as a band that embraces and promotes disrespectful, outrageous and disdainful behavior. … To further that image, they and the other defendants made an 'intentional commercial business decision' to include a promotional DVD with their music CD featuring outrageous conduct, including a 24 second clip of Sudore's reaction to the hot dog throwing incident.”

The court went on to note that Sudore was required to establish that the offensive conduct “was done with the intent to cause him 'severe' emotional harm, not that the harm was merely incidental to the commercially-driven conduct. … [But i]n any event, I find that Sudore's claim fails for another reason, that is, his inability to establish that the conduct complained of was sufficiently extreme or outrageous so as to be 'beyond all possible bounds of decency.' … While the conduct is plainly lamentable, I find that throwing a hot dog into the public spectator stands at a baseball game and filming the spontaneous reaction of the individual contacted is no more outrageous than the conduct that other courts have found insufficient as a matter of law; nor do I find that the inclusion of a 24 second video clip of that public incident in an approximately 65 minute promotional video transforms otherwise non-outrageous conduct into outrageous conduct.”