Cameo Clips

CONCERT TOURS/DEAL BREAKDOWN

The Court of Appeal of California, Second District, upheld a jury verdict ordering the return of $780,000 in deposit money paid for a proposed Rod Stewart tour of Latin America. But the court of appeal reversed a verdict of $1.6 million in damages that had been based on the jury's finding that Stewart's agent Steve Levine and lawyer Barry Tyerman intentionally interfered with contracts with tour subpromoters. PM Group Inc. v. Stewart, B181839. Concert promoter Howard Pollack and subpromoters AKE Music and Boulevard CIE filed the suit. In its unpublished opinion, the court of appeal first found that the expert testimony of entertainment attorney Owen J. Sloane had been properly admitted, noting, 'The record reveals Sloane's testimony related primarily to the customs and practices of the entertainment industry, specifically, the music concert business. Because these customs and practices are sufficiently beyond common experience, Sloane's expert opinion was admissible to assist the trier of fact.' The court of appeal then explained that, 'as a matter of law, Stewart and his agents could not have interfered with the performance of these subcontracts ' [A] contracting party is incapable of interfering with the performance of his or her own contract ' Additionally, the jury concluded Stewart and [plaintiff] PM Group never entered into a binding contract for Stewart's performance. Thus, none of the subcontracts among the plaintiffs and the subpromoters could have been performed.' Upholding the return of the deposit money, the court of appeal concluded that, 'as the trial court observed in its post trial rulings, each defendant was the agent of Stewart and the agent of each other. This being the case, [Stewart's manager, defendant Annie] Challis and Levine were agents of Stewart and agents of each other. Based on Pollack's testimony that each denied they were 'setting him up' for a cancellation before Pollack signed the release [of the deposit funds], the jury reasonably could conclude Challis and Levine each had sufficient involvement in the negligent misrepresentation to warrant imposition of liability.'

RIGHT OF PUBLICITY/WEB PHOTO DISPLAY

Answering two certified questions sent it by the trial court, the Appellate Court of Illinois, First District, upheld the denial of a motion by the photograph agency Corbis to dismiss a suit that had been filed by performer James Brown in 2002 over the display of photos of Brown on Corbis's Web site. Brown v. ACMI Pop Division, 1-06-0870. Corbis either owns the copyright or acts as a licensor for photographs potential licensees can view on its Web site. Corbis had insisted both that Web site display amounted to offering to license its copyrights, rather than selling a product, and that the right of publicity didn't bar First Amendment uses of the photos. The appellate court noted: 'Corbis argues that Brown's allegations are premised on an unprecedented legal theory that a copyright for a photograph of an individual cannot be licensed unless the publicity rights are obtained by the licensor, not the end user, without regard to the ultimate use of the photograph ' Brown responds that the trial court properly concluded that Corbis's display of his photos on its Web site did not constitute a part of a 'vehicle of information' similar to a news report because Corbis sells the photos for commercial purposes as a merchandise or good, which is prohibited by the Publicity Act.' Thus, answering the first of the certified questions, the appellate court decided: '[W]e cannot say that the facts are undisputed that Corbis's display of the photos of James Brown on its Web site did not in some way constitute an improper commercial use under either the Illinois common law or the [Illinois Right of Publicity Act], 735 ILCS 1075/1 et seq.]. We therefore cannot conclude that the trial court erred in denying Corbis's motion to dismiss.'

Corbis also argued that Brown's right-of-publicity claims were preempted by the Copyright Act. But on this certified issue, the appellate court found 'where it is possible that the photos as displayed on Corbis's Internet Web page can be interpreted as tangible, the Publicity Act as applied here would not preempt copyrights.'

TV INTERVIEWS/ANTI-SLAPP LAW

The Court of Appeal of California, Second District, ruled that a lawsuit by Marlon Brando's former housekeeper, Blanche Hall ' over an interview of her that aired on Celebrity Justice ' arose from 'conduct in furtherance of the defendants' right of free speech 'in connection with a public issue or an issue of public interest' ' within the meaning of the state's anti-SLAPP statute, Calif. Civ. Code Sec. 425.16. Hall v. Time Warner Inc., B192371. The statute allows a defendant to file a special motion to strike a lawsuit aimed at the exercise of First Amendment rights. The interview was conducted by surprise at the retirement home in which Hall resided. Hall sued for elder abuse, intentional infliction of emotional distress, intrusion upon seclusion, public disclosure of private facts and trespass. Reversing the trial court's denial of the defendants' motion to strike the complaint, the court of appeal explained: 'The public's fascination with Brando and widespread public interest in his personal life made Brando's decisions concerning the distribution of his assets a public issue or an issue of public interest. Although Hall was a private person and may not have voluntarily sought publicity or to comment publicly on Brando's will, she nevertheless became involved in an issue of public interest by virtue of being named in Brando's will. The defendants' television broadcast contributed to the public discussion of the issue by identifying Hall as a beneficiary and showing her on camera.' But the court of appeal added: 'Because the [trial] court did not reach or decide the question whether Hall had established a probability of prevailing on the counts alleged in her complaint or rule on objections to evidence presented by the parties with respect to that question, we will ' remand the matter with directions to decide those matters in the first instance.'

CONCERT TOURS/DEAL BREAKDOWN

The Court of Appeal of California, Second District, upheld a jury verdict ordering the return of $780,000 in deposit money paid for a proposed Rod Stewart tour of Latin America. But the court of appeal reversed a verdict of $1.6 million in damages that had been based on the jury's finding that Stewart's agent Steve Levine and lawyer Barry Tyerman intentionally interfered with contracts with tour subpromoters. PM Group Inc. v. Stewart, B181839. Concert promoter Howard Pollack and subpromoters AKE Music and Boulevard CIE filed the suit. In its unpublished opinion, the court of appeal first found that the expert testimony of entertainment attorney Owen J. Sloane had been properly admitted, noting, 'The record reveals Sloane's testimony related primarily to the customs and practices of the entertainment industry, specifically, the music concert business. Because these customs and practices are sufficiently beyond common experience, Sloane's expert opinion was admissible to assist the trier of fact.' The court of appeal then explained that, 'as a matter of law, Stewart and his agents could not have interfered with the performance of these subcontracts ' [A] contracting party is incapable of interfering with the performance of his or her own contract ' Additionally, the jury concluded Stewart and [plaintiff] PM Group never entered into a binding contract for Stewart's performance. Thus, none of the subcontracts among the plaintiffs and the subpromoters could have been performed.' Upholding the return of the deposit money, the court of appeal concluded that, 'as the trial court observed in its post trial rulings, each defendant was the agent of Stewart and the agent of each other. This being the case, [Stewart's manager, defendant Annie] Challis and Levine were agents of Stewart and agents of each other. Based on Pollack's testimony that each denied they were 'setting him up' for a cancellation before Pollack signed the release [of the deposit funds], the jury reasonably could conclude Challis and Levine each had sufficient involvement in the negligent misrepresentation to warrant imposition of liability.'

RIGHT OF PUBLICITY/WEB PHOTO DISPLAY

Answering two certified questions sent it by the trial court, the Appellate Court of Illinois, First District, upheld the denial of a motion by the photograph agency Corbis to dismiss a suit that had been filed by performer James Brown in 2002 over the display of photos of Brown on Corbis's Web site. Brown v. ACMI Pop Division, 1-06-0870. Corbis either owns the copyright or acts as a licensor for photographs potential licensees can view on its Web site. Corbis had insisted both that Web site display amounted to offering to license its copyrights, rather than selling a product, and that the right of publicity didn't bar First Amendment uses of the photos. The appellate court noted: 'Corbis argues that Brown's allegations are premised on an unprecedented legal theory that a copyright for a photograph of an individual cannot be licensed unless the publicity rights are obtained by the licensor, not the end user, without regard to the ultimate use of the photograph ' Brown responds that the trial court properly concluded that Corbis's display of his photos on its Web site did not constitute a part of a 'vehicle of information' similar to a news report because Corbis sells the photos for commercial purposes as a merchandise or good, which is prohibited by the Publicity Act.' Thus, answering the first of the certified questions, the appellate court decided: '[W]e cannot say that the facts are undisputed that Corbis's display of the photos of James Brown on its Web site did not in some way constitute an improper commercial use under either the Illinois common law or the [Illinois Right of Publicity Act], 735 ILCS 1075/1 et seq.]. We therefore cannot conclude that the trial court erred in denying Corbis's motion to dismiss.'

Corbis also argued that Brown's right-of-publicity claims were preempted by the Copyright Act. But on this certified issue, the appellate court found 'where it is possible that the photos as displayed on Corbis's Internet Web page can be interpreted as tangible, the Publicity Act as applied here would not preempt copyrights.'

TV INTERVIEWS/ANTI-SLAPP LAW

The Court of Appeal of California, Second District, ruled that a lawsuit by Marlon Brando's former housekeeper, Blanche Hall ' over an interview of her that aired on Celebrity Justice ' arose from 'conduct in furtherance of the defendants' right of free speech 'in connection with a public issue or an issue of public interest' ' within the meaning of the state's anti-SLAPP statute, Calif. Civ. Code Sec. 425.16. Hall v. Time Warner Inc., B192371. The statute allows a defendant to file a special motion to strike a lawsuit aimed at the exercise of First Amendment rights. The interview was conducted by surprise at the retirement home in which Hall resided. Hall sued for elder abuse, intentional infliction of emotional distress, intrusion upon seclusion, public disclosure of private facts and trespass. Reversing the trial court's denial of the defendants' motion to strike the complaint, the court of appeal explained: 'The public's fascination with Brando and widespread public interest in his personal life made Brando's decisions concerning the distribution of his assets a public issue or an issue of public interest. Although Hall was a private person and may not have voluntarily sought publicity or to comment publicly on Brando's will, she nevertheless became involved in an issue of public interest by virtue of being named in Brando's will. The defendants' television broadcast contributed to the public discussion of the issue by identifying Hall as a beneficiary and showing her on camera.' But the court of appeal added: 'Because the [trial] court did not reach or decide the question whether Hall had established a probability of prevailing on the counts alleged in her complaint or rule on objections to evidence presented by the parties with respect to that question, we will ' remand the matter with directions to decide those matters in the first instance.'