Bit Parts

Members in Expos' When Music Act
Gained Success Own Common Law Rights to Name

The U.S. Court of Appeals for the Eleventh Circuit affirmed a ruling by the U.S. District Court for the Southern District of Florida that the members in Expos' when the music act released its first successful album in 1986 were the common law owners of the rights to the “Expos'” name. Crystal Entertainment and Filmworks Inc. v. Jurado, 10-11837. Expos' was started by Pandera Productions in 1984 with three members who by 1986 were replaced with Ann Curless, Gioia Bruno and Jeanette Jurado. The latter three were featured on the debut Expos' album, which sold three million copies. Plaintiff Crystal Entertainment is Pandera's claimed successor in interest to the purported rights in the Expos' name. The district and appeals courts did find that Curless, Bruno and Garcia breached a 2006 agreement to pay Crystal Entertainment 10% of the gross income from Expos' concerts and merchandise. But on the trademark issue, the appeals court concluded, as did the trial court, that “Jurado, Curless, and Bruno controlled the qualities and characteristics that the public associates with the Expos' mark.”

Right of Publicity and Trademark Rulings on
“Dillinger Tommy Guns” in Videogames

The U.S. Court of Appeals for the Southern District of Indiana decided that the descendibility provision of the state's right of publicity statute, Ind. Code '32-36-1-8(a), doesn't apply to individuals who died before the law was enacted in 1994. Dillinger LLC v. Electronic Arts (EA) Inc., 1:09-cv-01236. As part of a pair of rulings involving reference to “Dillinger Tommy Gun” in Electronics Arts videogames based on the popular Godfather movies, District Judge Jane Magnus-Stinson emphasized: “Providing causes of action for the heirs of the millions of people who died between 1894 and 1994 ' i.e., during the 100 year post-death period of protection [in this case, for late 1930s gangster John Dillinger] ' would greatly expand the potential liabilities that the statute creates.” The retroactivity ruling is significant because Indiana's right of publicity statute applies to “an act or event that occurs within Indiana, regardless of a personality's domicile, residence or citizenship.” In her second ruling, District Judge Magnus-Stinson found EA's inclusion of the “Dillinger Tommy Gun” and “Modern Dillinger” Tommy Gun in the videogames were protected First Amendment uses that didn't violate “Dillinger” trademark rights. Judge Magnus-Stinson noted that “any connection [with the videogames] whatsoever is enough for the Court to determine that the mark's use meets 'the appropriately low threshold of minimal artistic relevance.'” The Godfather videogames don't include Dillinger himself, but district judge observed: “The gentleman-bandit, commonly known for his public persona as a 'flashy gangster who dressed well, womanized, drove around in fast cars, and sprayed Tommy Guns,' has above-zero relevance to a game whose premise enables players to act like members of the mafia and spray Tommy Guns.”

Members in Expos' When Music Act
Gained Success Own Common Law Rights to Name

The U.S. Court of Appeals for the Eleventh Circuit affirmed a ruling by the U.S. District Court for the Southern District of Florida that the members in Expos' when the music act released its first successful album in 1986 were the common law owners of the rights to the “Expos'” name. Crystal Entertainment and Filmworks Inc. v. Jurado, 10-11837. Expos' was started by Pandera Productions in 1984 with three members who by 1986 were replaced with Ann Curless, Gioia Bruno and Jeanette Jurado. The latter three were featured on the debut Expos' album, which sold three million copies. Plaintiff Crystal Entertainment is Pandera's claimed successor in interest to the purported rights in the Expos' name. The district and appeals courts did find that Curless, Bruno and Garcia breached a 2006 agreement to pay Crystal Entertainment 10% of the gross income from Expos' concerts and merchandise. But on the trademark issue, the appeals court concluded, as did the trial court, that “Jurado, Curless, and Bruno controlled the qualities and characteristics that the public associates with the Expos' mark.”

Right of Publicity and Trademark Rulings on
“Dillinger Tommy Guns” in Videogames

The U.S. Court of Appeals for the Southern District of Indiana decided that the descendibility provision of the state's right of publicity statute, Ind. Code '32-36-1-8(a), doesn't apply to individuals who died before the law was enacted in 1994. Dillinger LLC v. Electronic Arts (EA) Inc., 1:09-cv-01236. As part of a pair of rulings involving reference to “Dillinger Tommy Gun” in Electronics Arts videogames based on the popular Godfather movies, District Judge Jane Magnus-Stinson emphasized: “Providing causes of action for the heirs of the millions of people who died between 1894 and 1994 ' i.e., during the 100 year post-death period of protection [in this case, for late 1930s gangster John Dillinger] ' would greatly expand the potential liabilities that the statute creates.” The retroactivity ruling is significant because Indiana's right of publicity statute applies to “an act or event that occurs within Indiana, regardless of a personality's domicile, residence or citizenship.” In her second ruling, District Judge Magnus-Stinson found EA's inclusion of the “Dillinger Tommy Gun” and “Modern Dillinger” Tommy Gun in the videogames were protected First Amendment uses that didn't violate “Dillinger” trademark rights. Judge Magnus-Stinson noted that “any connection [with the videogames] whatsoever is enough for the Court to determine that the mark's use meets 'the appropriately low threshold of minimal artistic relevance.'” The Godfather videogames don't include Dillinger himself, but district judge observed: “The gentleman-bandit, commonly known for his public persona as a 'flashy gangster who dressed well, womanized, drove around in fast cars, and sprayed Tommy Guns,' has above-zero relevance to a game whose premise enables players to act like members of the mafia and spray Tommy Guns.”