Friday, May 30, 2008

Riders on the Storm: Doors members can't use pictures of Jim Morrison at concerts

Densmore v. Manzarek, 2008 WL 2209993 (Cal.App. 2 Dist.)

Raymond Manzarek, Robert Krieger, and John Densmore met in a meditation class in LA in 1965. At Manzarek’s suggestion, they formed a band with Manzarek’s acquaintance Jim Morrison. Over forty years later, the trial court enjoined Manzarek and Krieger from holding themselves out as the band The Doors, and awarded over $3.2 million to Densmore and his partnership with Jim Morrison’s heirs. The court found that defendants had engaged in false advertising and enjoined various forms of advertising of “The New Doors” or “The 21st Century Doors” that deemphasized everything but the “Doors” and that incorporated the classic Doors logo.

Most of the claims in the case focused on the partnership agreements in operation before and after Morrison’s death. I will skip over large portions of the legal analysis, focusing on the overlap between trademark and false advertising claims and on the injunction granted to redress violations of the right of publicity.

A jury found that both sides had breached various agreements, and that defendants had violated the Morrison Estate’s California statutory publicity rights, but rejected the state and federal unfair competition claims submitted to it. The jury also awarded zero damages for breach, but the trial court determined that it could still award lost profits to the plaintiffs, a conclusion upheld on appeal.

The publicity rights claims stemmed from the display of Jim Morrison’s image to the audience at about 30 concerts; the image was shown from 30 to 90 seconds at the beginning of Manzarek’s band’s set. In several cities, ads for the band used Morrison’s voice singing Doors songs, and merchandise used words and phrases associated with Morrison.

The advertising/trademark issues on appeal focused on the fact that the jury found that there had been no trademark infringement or unfair competition. But the court determined that false advertising was an equitable issue and entered judgment for plaintiffs. (Because the jury awarded zero monetary damages for the right of publicity claim, the court awarded $750, the statutory minimum.) On appeal, defendants argued that the court’s false advertising ruling was inconsistent with the jury’s findings on the trademark/unfair competition issues. The jury instructions provided that they should find for plaintiffs if use of the names “The Doors” or “The Doors of the 21st Century” was likely to cause confusion or was likely to deceive people into thinking that use of the names was authorized or constituted unfair business practices or false advertising.

The court of appeals held that the jury verdict wasn’t necessarily inconsistent with the false advertising claim. On the first argument, the false advertising claim requires untrue or misleading advertising, and an ad can be untrue or misleading without causing confusion about source. Comment: true but entirely irrelevant, since the court discusses no element of the advertising that is misleading for any other reason but source identification. The court continued that, under California law, false advertising has slightly different elements than unfair competition; though case law holds that a false advertising violation necessarily violates the unfair competition statute, this is only true as an “abstract proposition,” and a jury might find one without the other, for example if there is no “business practice” for purposes of the unfair competition law. Comment: Again, the court offers no reason to think any relevant element of an unfair competition claim might have been missing here. The court also discounted the jury instructions specifically mentioning false advertising because the jury wasn’t instructed on the elements of false advertising. So, though it was a “close question,” the unfair competition and false advertising claims weren’t duplicates, and the court could find false advertising without defying the jury verdict.

Anyway, the jury’s verdict was only advisory, and the trial court could disregard it, because this was an equitable claim. The trial court found that the advertising was false in that it stated that defendants’ band was The Doors. But the band was not The Doors. It’s true enough that no one seeing the ads would expect to see Jim Morrison perform. But the ad wasn’t for Jim Morrison. It was for the band known as The Doors. (This is, I think, slicing the salami rather fine. What is The Doors, once we admit that consumers know that it’s not a group that includes Jim Morrison? The court implicitly holds, for reasons known best to itself, that a band that includes two of the three surviving original members is not The Doors.)

Defendants can continue to identify themselves as founding or original members of The Doors, subject to limits on placement, wording, and font size, and a ban on using the classic Doors logo or any font similar in style to the classic Doors logo.

The court further sustained an injunction against using Morrison’s name, likeness, voice or image to promote defendants’ band. Here the court turned performance critic: “From an artistic or musical perspective, briefly displaying a photograph of Morrison during or immediately prior to a concert adds nothing to the performance and is, in fact, not a part of the performance.” I suspect most rock critics and performance theorists would disagree; combining audio and visual is a primary reason to attend a live performance. But, the court continued, “[t]he only reason to display a photograph of the iconic Morrison is to suggest that the band is a continuation of his work and artistry--in short, to add Morrison’s luster to the band and thus to profit from his name and likeness,” and that’s what the right of publicity statute bans.

Under the injunction, defendants can use Morrison’s likeness for any “legitimate” purpose, “such as an account of the history of The Doors, or in telling the story of 20th century rock and roll. The only act it prohibits is using Morrison’s name and likeness to promote appellants’ band or their concerts.” When you’re at the concert already, how does using the image “promote” the band? What if the original band members begin the show with reminiscences of “the history of The Doors”? Though the ruling with respect to actual ads makes some sense, the court should have drawn the line at conventional commercial speech. (Note that the ruling for ads only makes sense because concerts aren’t excluded from the California right of publicity statute by the provision that protects ads for “a play, book, magazine, newspaper, musical composition, audiovisual work, radio or television program, single and original work of art, [or] work of political or newsworthy value.”)

The dissent began by pointing out that “[t]he members of our community who diligently served as trial jurors in this case for nearly fourteen weeks would be startled to learn that their months of work counted for nothing.” There was a major screw-up in trial management—a month into trial, plaintiffs informed everyone that their claims were largely equitable, not legal, and the parties continued to fight over the legal/equitable line for months after the trial ended. Under the circumstances, the dissent would have bound the plaintiffs to the jury’s findings, allowing an injunction against further breach of the contract, but not damages.

As the dissent explained in a footnote, the jury apparently thought that everybody involved had behaved badly, justifying findings of liability on all sides without transfer of money. This, the dissent thought, was quite consistent with the evidence: “Densmore was unable or unwilling to tour; but, rather than giving Manzarek and Krieger the go-ahead with his blessing, he blocked them from performing with other musicians as The Doors of the 21st Century. Manzarek and Krieger knew that the rule of the partnership was unanimity, but when Densmore acted unreasonably, they just went ahead in a ‘to-heck-with-him’ manner. The Estates consist of people who have never touched a musical instrument or a microphone but want to take money from Morrison's former band-mates who - in their mid-60s - are out working.”

However, the dissent would have held that the false advertising claim failed. The trial court’s finding of false advertising based on the use of the name The Doors, a photo of Jim Morrison, and the logo/font associated with The Doors was inconsistent with the jury’s finding of no liability on the trademark and unfair competition claims. Moreover, the majority didn’t explain what was false or misleading: “Surely no one buying a ticket in the 21st century to see The Doors in concert would expect to see Jim Morrison perform. He has been dead for some 37 years. Indeed, Morrison vies with Janis Joplin, Jimi Hendrix, and John Lennon for the title of world’s most famous rock musician to have died young.” (The dissent’s obvious correctness on this point was blunted by its introduction of this problem as a question of the line between falsity and misleadingness, which allowed the majority to respond by parsing doctrine instead of explaining what a reasonable consumer viewing the ad might mistakenly think.)

In any event, the dissent would have held that plaintiffs lacked standing to sue for false advertising, because they had not suffered an injury in fact, nor had they lost money or property as a result of the unfair competition. The jury awarded zero dollars to the plaintiffs on their claims, and the plaintiffs conceded at the start of trial that they were not claiming any harm to their catalogue.

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