Bit Parts

Boots Litigation Involving John Wayne's Persona To Be Heard in California, Instead of Texas

The U.S. District Court for the Western District of Texas will let a dispute over the alleged unauthorized use of John Wayne's persona to market boots be first heard by a California court. On April 28, 2017, JWE filed suit in California's Orange County Superior Court alleging multiple unauthorized uses of the late actor's persona to promote Lucchese's boot products, which Wayne often wore and publicly praised. Four hours after JWE filed its lawsuit, Lucchese filed a declaratory action in the Western District of Texas asking for what District Judge Philip R. Martinez described as “extremely broad pronouncements regarding [Lucchese's] current, past, and future rights to use John Wayne's name, image, and likeness.” Granting JWE's motion to dismiss the Texas action, District Judge Martinez decided: “Lucchese's generic requests for federal declaratory relief in the Federal Suit do not predominate over its own parallel state claims, which mirror JWE's claims in the State Suit. Further, JWE suggests and Lucchese does not contest that Lucchese can bring defenses under federal or state law in the State Suit …” Judge Martinez added, “Regardless of the specific law governing the dispute, both parties would likely produce substantially similar evidence, witnesses, and arguments in either lawsuit.” Lucchese Inc. v. John Wayne Enterprises LLC (JWE), 17-CV-135 (W.D.Tex.).

Distinguishing Between Burden of Proof for California Statutory and Common Law “Likeness” Violation Claims

California allows for both statutory right of publicity and common law misappropriation claims to be included in the same lawsuit. The U.S. District Court for the Northern District of California granted partial summary judgment in favor of Electronic Arts in a class action by former National Football League players who sued over inclusion of their likenesses in the Madden NFL video games. Davis v. Electronic Arts Inc. (EA), 10-cv-03328. In knocking out the plaintiffs' §3344 claim, District Judge Richard Seeborg distinguished between burdens of proof for establishing a right-of-publicity violation under Calif. Civ. Code §3344 and for common law misappropriation. “Because a statutory claim — as opposed to a claim under the common law — requires a plaintiff to show the defendant has used a visual image of the plaintiff that is 'readily identifiable,' and because the undisputed facts show that any association between the 'avatars' used in the Madden games and plaintiffs depends on contextual information beyond the visual images, the statutory claim is not viable and EA's motion must be granted.”

Interpreting Jury Verdict in Quincy Jones' Music Royalty Case

Music producer Quincy Jones' litigator Mike McKool, of the Texas firm McKool Smith, had a prime takeaway for the music industry from the jury verdict in Jones' lawsuit against MJJ Productions and related defendants. Quincy Jones v. MJJ Productions Inc., BC525803. Jones, who produced Michael Jackson's Off the Wall, Thriller and Bad albums, alleged breach of contract for underpayment of producer royalties, including from uses of Jackson's music in the posthumous documentary This Is It and in Cirque du Soleil Jackson-theme performances. Jones entered into his record producer contracts in 1978 and 1985. Jackson entered into a joint venture agreement with Sony in 1991 but died in 2009, after which his estate negotiated a sweetened share of the joint venture profits. The Los Angeles Superior Court jury awarded Jones $9.4 million of the $30 million he sought. McKool said about the potential impact of the verdict, “At the top of my list is the ability of royalty holders to share in joint venture profits. The estate took the position that Quincy wasn't entitled to that. They continued to deem that what was paid to the estate [by Sony] was a royalty. We didn't know how Quincy was paid until after the lawsuit was filed.” The litigation team for Jackson's estate, which includes Howard Weitzman of Kinsella Weitzman Iser Kump and Aldisert LLP and Zia F. Modabber of Katten Muchin Rosenman LLP, said they would challenge the verdict. The estate litigators said about it: “This would reinterpret the legal language in, and effectively rewrite, contracts that Mr. Jones lived under for more than three decades, admitted he never read, referred to [in his trial testimony] as 'contract, montract,' and told the jurors he didn't 'give a damn' about.”

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Stan Soocher is Editor-in-Chief of Entertainment Law & Finance and a tenured Associate Professor of Music & Entertainment Studies at the University of Colorado's Denver Campus. He is author of the book Baby You're a Rich Man: Suing the Beatles for Fun & Profit (ForeEdge/University Press of New England). For more, visit www.stansoocher.com.