Apple Corps Ltd. v. Leber, et. al. - Mark Roesler

229 U.S.P.Q. 1015 Page 11986 WL 215081 (Cal.Super.), 12 Media L. Rep. 2280(Cite as: 229 U.S.P.Q. 1015)Cite: Apple Corps Ltd. v. Leber et al., 229 U.S.P.Q. 1015 (1986).Keywords:right of publicity, first sale doctrine,Federal or State Case: StateState Locus: CaliforniaLevel of State Court: California Superior CourtWhich Federal Court: n/aLaw Applied: Right of Publicity, First Amendment, Fair Use, Copyright, Lanham ActSummary: Apple Corps Limited, sued Steven Leber, David Krebs, Beatlemania Ltd.,Ely Landau, Ely Landau, Inc., and The This Is The Week That Beatlemania WasCompany, Inc., for misappropriation of right of publicity. Judgment for plaintiff.

229 U.S.P.Q. 1015 Page 21986 WL 215081 (Cal.Super.), 12 Media L. Rep. 2280(Cite as: 229 U.S.P.Q. 1015)Apple Corps Limitedv.Leber, et al.California Superior Court Los Angeles CountyNo. C 299149Decided June 3, 1986*1015 Action by Apple Corps Limited, againstSteven Leber, David Krebs, Beatlemania Ltd., ElyLandau, Ely Landau, Inc., and The This Is The WeekThat Beatlemania Was Company, Inc., formisappropriation of right of publicity. Judgment forplaintiff.Bertram Fields, Robert F. Marshall, and Greenberg,Glusker, Fields, Claman & Machtinger, all of LosAngeles, for plaintiff.Joel M. Smith, Gary L. Swingle, and Leopold,Petrich & Smith, all of Los Angeles, Calif., fordefendants.*1016 Breckenridge, Jr., Judge.In this matter heretofore taken under submission,the Court announces its intended decision as follows:Judgment for plaintiff and against defendants Leber,Krebs, and Beatlemania, Ltd. in the amount of$5,625,000, with interest at the rate of seven percentfrom and after September 25, 1979, until Judgment isentered and thereafter at ten percent, and againstdefendants Ely Landau, Ely Landau, Inc., and TheThis Is The Week That Beatlemania Was Company,Inc., in the amount of $2,000,000, plus interest at arate of seven percent from and after January 1, 1981,until entry of Judgment, and thereafter at a rate of tenpercent, plus costs of suit. In addition, plaintiffs areentitled to injunctive relief against furtherunconsented presentations of Beatlemania orexploitations of the Beatles personna in whateverform. Counsel for plaintiffs is ordered to prepare, fileand serve a Statement of Decision, if timelyrequested, and Judgment in accordance with theCourt's intended decision.COMMENTS:The facts of this lawsuit are basically withoutcontradiction, and, as found by the Court are as setforth in that section of plaintiff's trial brief labelled"The Facts," except for the argumentative material.Plaintiffs' claims have as their core the right ofpublicity which the Beatles acquired as aconsequence of their joint professional career. Sincethis case is to be decided by New York law, that rightis set forth in the New York Civil Rights Law,sections 50 and 51. These statutes have been held,inter alia, to proscribe the unconsented use by othersof a plaintiff's name, portrait, or picture for purposesof trade or advertising.Beatlemania consisted of Beatles look-alike, soundalike,imitators performing live on stage twenty-nineof the more popular Lennon-McCartney songs, to amixed media background, and foreground of slides,and movies which depicted a whole variety ofsubjects, many of which related to events occurringduring the 1960's. The imitators were onstageperforming approximately 95% of the 90-100 minuteperformance.Defendants' basic defense arises out of the FirstAmendment to the U.S. Constitution. As a generalproposition, a theatrical, orchestral, or cinematicperformance is a form of expression, protected as freespeech. On the other hand, entertainment that merelyimitates, does not have a creative component of itsown and is not protected by the First Amendment.Estate of Presley v. Russen, 513 Fed.Supp. 1339, 211USPQ 1339. Defendants have, therefore, contendedthat Beatlemania was not simply imitation, but ratheran historical overview of the 1960's, and that themixed media material contained significant politicaland social comment upon that era, all of whichshields defendants with the protection of the FirstAmendment.In order to accommodate the right ofprivacy/publicity and the First Amendment, the NewYork courts have concluded that an unconsented"use" does not violate the civil rights law if it occursas the result of publication of newsworthy events ormatters of public interest. Thus defendants contendthat the use of the mixed media presentation bringsBeatlemania within the "newsworthy or publicinterest" exception, or in the alternative, causes it tobe absolutely protected by the First Amendment

229 U.S.P.Q. 1015 Page 51986 WL 215081 (Cal.Super.), 12 Media L. Rep. 2280(Cite as: 229 U.S.P.Q. 1015)violation a registrant of a mark at the Patent andTrademark Office. Thus, the Court is not includingin its intended decision such an award. However,the Court will reserve jurisdiction to reconsidersame in the cost bill should plaintiff have furthercase authority on the subject.There are other contentions of the parties whichhave been implicitly decided by the Court, butwhich have not been discussed in thisMemorandum. Suffice it to say that those whichdeal with any principal controverted issue shouldbe incorporated by plaintiff into the Statement ofDecision.FN1 "Right of Privacy. . .", by LawrenceSonell, 48 Albany Law Review 1, 23-25(1983).FN2 Gagnon Co. Inc. v. Nevada Desert Inn,45 Cal.2d 448, 454.Cal.Super.229 U.S.P.Q. 1015