Love loses out

Just in time for Valentine's Day.

Love v. The Mail on Sunday, --- F.Supp.2d ----, 2007 WL 458050 (C.D. Cal.)

As the court notes with near-palpable weariness, this is the latest iteration of longrunning disputes involving the members of the Beach Boys. Here, plaintiff Mike Love alleged that defendants created and distributed a covermount CD of Beach Boys and Brian Wilson Material, performed by Brian Wilson. He claimed that the CD and associated advertisements violated various of his rights; the only claim at issue in this motion was the Lanham Act claim based on the CD’s use of Beach Boys photos that included Love’s image, and on the use of “The Beach Boys” on the CD and related ads.

The CD was distributed in the UK, and allegedly promoted on UK TV and the internet. Plaintiff’s claimed losses include damage to existing and future sales of Beach Boys albums and concert tickets and tarnishment of the Beach Boys mark.

The court ruled that plaintiff was seeking extraterritorial application of the Lanham Act, which was not available to him. In order for the Lanham Act to apply to foreign activities, (1) the alleged violations must create some effect on American foreign commerce, (2) the effect must be sufficiently great to create a cognizable injury, and (3) the interests of and links to American foreign commerce must be sufficiently strong in relation to those of other nations to justify assertion of extraterritorial authority.

Love’s claims flunked that test. The allegedly infringing acts occurred overseas and were not authorized in the US (in fact, Wilson’s lawyer apparently told one of the overseas parties to get permission from the individual Beach Boys to use their images, which he recommended against in any case since the CD was focused on Wilson). The CDs weren’t distributed in the US, and the US defendants didn’t engage in any distribution. The only evidence of distribution in the US is via the secondary market for used CDs on eBay, but the court disregarded evidence of a single US sale that way because plaintiff didn’t disclose that the sale was to his attorney’s confederate.

On these facts, there’s no evidence of any effect on US commerce. There was no evidence about the “attenuated” effect the CD might have on increasing demand for Wilson’s concert, in turn decreasing demand for Love’s concerts, other than Love’s own purely speculative declaration. Without effect (1), there could be no harm (2). Also, in relative terms, the UK had a far greater interest in the matter. English law governing Love’s claims differs significantly from U.S. law. English law doesn’t recognize a right of publicity, analogous to Love’s claim for wrongful use of his “persona.” Moreover, the analogous UK claim of false endorsement is narrower than the US version. Because the conduct may have been lawful in the country in which it occurred, US law shouldn’t be applied. Numerous other factors also supported this decision, including the fact that the parties who actually engaged in the allegedly infringing conduct are domiciled in the UK and had already been dismissed from the case for lack of personal jurisdiction. None of the cases cited by Love were sufficiently similar to the instant facts to change the court’s analysis.

On its own motion, the court dismissed Love’s claim for unfair competition under California law, since the only basis for alleging unlawful and deceptive conduct was the Lanham Act claim, now dismissed.