Bit Parts

Band Members' Royalty Claims Against Survivor Principal Survive Dismissal

The U.S. District Court for the Northern District of Illinois, Eastern Division, decided that two musicians who joined the rock band Survivor after its founding could proceed with royalty counterclaims against band principal Frank Sullivan and Survivor Music. Sullivan v. Jamison, 06 C 5240. (Sullivan had sued Jamison for trademark infringement.) Neither counterclaimant, vocalist Jimmy Jamison nor bassist Stephan Ellis, were in Survivor when the band signed a 1978 recording agreement with Scotti Brothers Records. But District Judge Sharon Johnson Coleman noted that the 1978 contract and an amended 1983 recording agreement with Scotti Brothers “incorporated new members of the band through the execution of inducement letters and bound them to the contracts to the same degree as the original members.” Judge Coleman also noted, for example: “On [Oct.] 23, 1986, Gerald Margolis, an attorney for Survivor, wrote a letter to Jamison's attorney concerning the relationship between the corporation Survivor Music Enterprises, Inc. and Jamison. The letter states in relevant part, 'So far as I am able to ascertain from John Baruck [manager] and from the accountant for Survivor Music Enterprises, Inc., Jimi Jamison has indeed and in fact been extended and enjoyed all the benefits of the other individual members of the recording and performing group Survivor, commencing with the admission of him as a member of the group and through the present date ' the group is comprised of five individuals (including your client), and business structures aside, the net revenues of the group from personal appearances and phonorecords are split among the members in equal shares.'”

Insurance Policies Don't Cover Right-of-Publicity Claim

The U.S. District Court for the Western District of North Carolina decided that commercial-liability insurance policies didn't cover a right-of-publicity suit filed over the insured's unauthorized use of a photograph of an individual in a national magazine advertisement. ISS Research LLC v. Federal Insurance Co., 3:10-CV-41-GCM. Former football player Paul Green had sued ISS Research in California for common law misappropriation and violation of Calif. Civ. Code '3344 over use of his photo in a magazine ad for nutrition bars. ISS subsequently sued Federal Insurance in North Carolina federal court for a declaratory ruling that Federal breached the insurance contracts it issued to ISS by refusing to defend or indemnify ISS from Green's suit. The insurance policies contained “Intellectual Property Laws or Rights” exclusions, including for claims brought over “likeness” violations. But ISS argued that Green's claim was nevertheless covered because “likeness” didn't encompass a photo. North Carolina federal District Judge Graham C. Mullen acknowledged, “California law makes a distinction between a photograph and a likeness [i.e., '3344 protects 'name, voice, signature, photograph, or likeness']. However, other courts, including courts in North Carolina, consider a photograph to be a type of likeness.” Granting partial summary judgment for Federal Insurance, Judge Mullen found “the sole factual basis for the Green Complaint is the alleged 'misappropriation of his likeness' utilized for commercial gain. ' California law, under which the Plaintiff herein was sued, recognizes that Green's right to control the commercial use of his likeness is an intellectual property right. ' The Intellectual Property exclusion applies to alleged violations of 'judicial or statutory law recognizing an interest in, any ' likeness.'”

Sample Submission Form Blocks Claims over VH1 Reality Show

The U.S. District Court for the Eastern District of Pennsylvania granted summary judgment for defendant Viacom in a suit alleging that the plaintiffs originally developed the concept for the VH1 reality-TV series Charm School. Sims v. Viacom, 09-3521. Chief Judge Harvey Bartle III noted that, on their breach-of-contract claim, plaintiffs Charles Sims and Allison Jordan “have failed to produce a copy of the submission release on which they rely.” But after examining a standard MTV Networks submission-release form ' which contains a six-month statute of limitations for claims based on “MTVN's use or intended use of any portion of the Material” ' Judge Bartle found: “It is undisputed that [VH1's show] aired in April 2007. Plaintiffs have produced, as an exhibit to their amended complaint a document entitled, 'Show Comparisons,' which was drafted by Sims and identified purported similarities between 'Charm School' and [the plaintiffs'] 'Ghetto Fabulous.' It was dated May 21, 2007.” Thus, the judge concluded: “Plaintiffs clearly knew or reasonably should have known of any contractual breach by May 21, 2007. However, they did not file suit until [Jan.] 23, 2009, well over a year after the window for asserting claims had closed.” As for the plaintiffs, claim of breach of implied contract, the court emphasized: “We have already determined that the submission release is a valid written contract governing the relationship between plaintiffs and Viacom for use of the 'Ghetto Fabulous' treatment. The submission release supersedes any alleged implied contract.”

Band Members' Royalty Claims Against Survivor Principal Survive Dismissal

The U.S. District Court for the Northern District of Illinois, Eastern Division, decided that two musicians who joined the rock band Survivor after its founding could proceed with royalty counterclaims against band principal Frank Sullivan and Survivor Music. Sullivan v. Jamison , 06 C 5240. (Sullivan had sued Jamison for trademark infringement.) Neither counterclaimant, vocalist Jimmy Jamison nor bassist Stephan Ellis, were in Survivor when the band signed a 1978 recording agreement with Scotti Brothers Records. But District Judge Sharon Johnson Coleman noted that the 1978 contract and an amended 1983 recording agreement with Scotti Brothers “incorporated new members of the band through the execution of inducement letters and bound them to the contracts to the same degree as the original members.” Judge Coleman also noted, for example: “On [Oct.] 23, 1986, Gerald Margolis, an attorney for Survivor, wrote a letter to Jamison's attorney concerning the relationship between the corporation Survivor Music Enterprises, Inc. and Jamison. The letter states in relevant part, 'So far as I am able to ascertain from John Baruck [manager] and from the accountant for Survivor Music Enterprises, Inc., Jimi Jamison has indeed and in fact been extended and enjoyed all the benefits of the other individual members of the recording and performing group Survivor, commencing with the admission of him as a member of the group and through the present date ' the group is comprised of five individuals (including your client), and business structures aside, the net revenues of the group from personal appearances and phonorecords are split among the members in equal shares.'”

Insurance Policies Don't Cover Right-of-Publicity Claim

The U.S. District Court for the Western District of North Carolina decided that commercial-liability insurance policies didn't cover a right-of-publicity suit filed over the insured's unauthorized use of a photograph of an individual in a national magazine advertisement. ISS Research LLC v. Federal Insurance Co., 3:10-CV-41-GCM. Former football player Paul Green had sued ISS Research in California for common law misappropriation and violation of Calif. Civ. Code '3344 over use of his photo in a magazine ad for nutrition bars. ISS subsequently sued Federal Insurance in North Carolina federal court for a declaratory ruling that Federal breached the insurance contracts it issued to ISS by refusing to defend or indemnify ISS from Green's suit. The insurance policies contained “Intellectual Property Laws or Rights” exclusions, including for claims brought over “likeness” violations. But ISS argued that Green's claim was nevertheless covered because “likeness” didn't encompass a photo. North Carolina federal District Judge Graham C. Mullen acknowledged, “California law makes a distinction between a photograph and a likeness [i.e., '3344 protects 'name, voice, signature, photograph, or likeness']. However, other courts, including courts in North Carolina, consider a photograph to be a type of likeness.” Granting partial summary judgment for Federal Insurance, Judge Mullen found “the sole factual basis for the Green Complaint is the alleged 'misappropriation of his likeness' utilized for commercial gain. ' California law, under which the Plaintiff herein was sued, recognizes that Green's right to control the commercial use of his likeness is an intellectual property right. ' The Intellectual Property exclusion applies to alleged violations of 'judicial or statutory law recognizing an interest in, any ' likeness.'”

Sample Submission Form Blocks Claims over VH1 Reality Show

The U.S. District Court for the Eastern District of Pennsylvania granted summary judgment for defendant Viacom in a suit alleging that the plaintiffs originally developed the concept for the VH1 reality-TV series Charm School. Sims v. Viacom, 09-3521. Chief Judge Harvey Bartle III noted that, on their breach-of-contract claim, plaintiffs Charles Sims and Allison Jordan “have failed to produce a copy of the submission release on which they rely.” But after examining a standard MTV Networks submission-release form ' which contains a six-month statute of limitations for claims based on “MTVN's use or intended use of any portion of the Material” ' Judge Bartle found: “It is undisputed that [VH1's show] aired in April 2007. Plaintiffs have produced, as an exhibit to their amended complaint a document entitled, 'Show Comparisons,' which was drafted by Sims and identified purported similarities between 'Charm School' and [the plaintiffs'] 'Ghetto Fabulous.' It was dated May 21, 2007.” Thus, the judge concluded: “Plaintiffs clearly knew or reasonably should have known of any contractual breach by May 21, 2007. However, they did not file suit until [Jan.] 23, 2009, well over a year after the window for asserting claims had closed.” As for the plaintiffs, claim of breach of implied contract, the court emphasized: “We have already determined that the submission release is a valid written contract governing the relationship between plaintiffs and Viacom for use of the 'Ghetto Fabulous' treatment. The submission release supersedes any alleged implied contract.”