UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK RONNIE VAN ZANT, INC., GARY R. ROSSINGTON, JOHNNY VAN ZANT, BARBARA HOUSTON, as the Trustee of the ALLEN COLLINS TRUST, and ALICIA RAPP and CORINNA GAINES BIEMILLER, as the Personal Representatives of the Estate of STEVEN GAINES, Plaintiffs, ?against? ARTIMUS PYLE (a/k/a THOMAS D. PYLE), CLEOPATRA RECORDS, INC., JOHN DOE, JANE DOE, XYZ CORPORATION, and XYZ LLC (the names of the last four defendants being ?ctitious and unknown to plaintiffs, and intended to designate persons or entities that have or may have a role in the production and distribution of the Motion Picture complained of in the Complaint herein), Defendants. CLEOPATRA MEMORANDUM OF LAW IN OPPOSITION TO Case No: l7?cv?3360 PLAINTIFF MOTION FOR PRELIMINARY INJUNCTION MANDEL BHANDARI LLP Evan Mandel Donald Conklin 80 Pine Street, 33rd Floor New York, NY 10005 T: (212) 269-5600 F: (646) 964-6667 Attorneys for Defendant Cleopatra Records, Inc. TABLE OF CONTENTS PRELIMINARY STATEMENT 1 STATEMENT OF FACTS 2 ARGUMENT 6 I. PLAINTIFF ARE UNLIKELY TO PREVAIL ON THE MERITS 7 A. The Consent Decree Cannot Apply to Cleopatra Records Because It Was Not a Party to the 1988 Action and Did Not Consent to the Decree 7 B. Cleopatra Has Not Run Afoul of the Consent Decree 9 C. Cleopatra Has a First Amendment Right to Publish the Film 10 D. An Injunction Would Constitute an Impermissible Prior Restraint 12 II. PLAINTIFF HAVE FAILED TO MAKE A STRONG SHOWING OF IRREPARABLE HARM 6 A. Plaintiffs' Conclusory Allegations About a Competing Film Do Not Warrant An Injunction 1 7 B. Plaintiffs' Conclusory Allegations of Customer Con?Jsion Do Not Warrant An Injunction 1 9 C. Plaintiffs' Conclusory Allegations of Reputational Harm Do Not Warrant An Injunction 20 BALANCING HARDSHIPS WEIGHS IN FAVOR OF CLEOPATRA 21 IV. THE PUBLIC INTEREST AVORS CLEOPATRA 22 V. PLAINTIFF BOND WOULD HAVE TO BE AT LEAST $1.3 MILLION 23 VI. THE MOTION TO SEAL 23 CONCLUSION 24 ii ACLU of Illinois v. Alvarez Alexander v. United States Alzheimer's Found. of Am., Inc. v. Alzheimer's Disease & Related Disorders Ass'n, Inc. Ascroft v. Iqbal Ass'n for Retarded Citizens of Connecticut, Inc. v. Thorne Borey v. National Union Fire Ins. Co Burroughs v. Metro-Goldwyn Mayer, Inc CBS, Inc. v. Davis Clonus Assocs. v. Dreamworks, LLC Cobalt Multifamily Inv'rs I, LLC v. Shapiro Consumers Union of United States, Inc. v. General Signal Corp Crosby v. Bradstreet & Co CRP/Extell Parcel I, L.P. v. Cuomo Elrod v. Burns Ford Motor Co. v. Lane Grondin v. Rossington Hicks v. Casablanca Records Hoechst Diafoil v. Nan Ya Plastics Corp In re United Pan-Europe Comms, N.V Joseph Burstyn, Inc. v. Wilson JSG Trading Corp. v. Tray–Wrap, Inc Madison Square Garden Boxing, Inc. v. Shavers Martin v. Wilks Matter of Providence Journal Co. Metro. Opera Ass'n, Inc. v. Local 100, Hotel Employees and Rest. Employees Int'l Union Monster Comms., Inc. v. Turner Broadcasting Sys., Inc N.Y. ex rel. Schneiderman v. Actavis PLC N.Y. Progress & Prot. PAC v. Walsh N.Y. Times Co. v. United States Nat'l Football League Players Ass'n v. Nat'l Football League Props., Inc Near v. State of Minnesota ex rel. Olson Nebraska Press Ass'n v. Stuart New Kids on the Block v. News Am. Pub., Inc. Nintendo of Am., Inc. v. Lewis Galoob Toys, Inc Procter & Gamble Co. v. Bankers Trust Co. Red Earth LLC v. United States Risenhooven v. Bayer Corp. Group Health Plan Rodriguez v. DeBuono Saratoga Vichy Spring Co., Inc. v. Lehman Schad v. Borough of Mt. Ephraim Southeastern Promotions, Ltd. v. Conrad Superior Films, Inc. v. Dep't of Educ. of State of Ohio, Div. of Film Censorship Tiffany (NJ) Inc. v. eBay Inc. Tom Doherty Assocs., Inc. v. Saban Entm't, Inc United States v. City of N.Y. Worldwide Diamond Trademarks, Ltd. v. Blue Nile, Inc PRELIMINARY STATEMENT Cleopatra Records, Inc.'s ("Cleopatra") af?liate is making a movie about 1977 plane crash. In addition to reviewing all of the written material that Cleopatra could ?nd, it interviewed member Artimus Pyle about the plane crash. Pyle has given numerous interviews about the band and the plane crash, apparently without any objections from Plaintiffs. Pyle did not write, direct, or produce the ?lm, the beginning of which will include an explicit disclaimer stating that neither nor any member of the band has authorized the ?lm. Plaintiffs bring only a single claim against Cleopatra: they allege that the ?lm violates a settlement agreement in a 1988 civil action to which Cleopatra was not a party. The settlement agreement was memorialized in a Consent Decree. Plaintiffs' sole claim is as meritless as its request for a preliminary injunction. No Likelihood of Success on the Merits. First, the bedrock of the American legal system is that a party is not bound by a judgment in a case to which it was not a party. This principle is particularly strong when it comes to consent decrees, the source of which are the parties' consent as opposed to obligations imposed by law. Cleopatra is not bound by the Consent Decree because it was not a party to the 1988 action. Second, Cleopatra has not violated the Consent Decree because the Decree explicitly permits Pyle to discuss the band and its members when relating his experiences. As far as we are aware, Plaintiffs have not raised any objection to the numerous interviews that Pyle has granted in the past, and there is no basis for Plaintiffs to start doing so now. Third, Cleopatra has a First Amendment right to publish the ?lm. Fourth, even if the Consent Decree could be read to prohibit third?parties from publishing books, articles, and ?lms that use a member as a source, such a reading would constitute an unconstitutional prior restraint of speech. The heavy presumption against prior restraints can only be overcome, if at all, by interests that rise to the level of direct and immediate threats to national security. Plaintiffs' speculative concerns about lost box of?ce sales of a movie that there is zero evidence will ever be made cannot justify a prior restraint. Only Cleopatra Will Suffer Irreparable Harm. Plaintiffs have had 40 years to make a movie about the 1977 plane crash but have failed to do so. For the ?rst time, they claim in conclusory fashion that they have "selected" a producer. There is zero evidence that they have hired anyone to make the ?lm, that they have a script, or that they have the ?nancial resources to make such a ?lm. Such conclusory and speculative evidence cannot support irreparable harm. Because Cleopatra is going to explicitly advise viewers at the outset of the ?lm that it has not been authorized by the band or any of its members, there is no risk of consumer confusion. And Plaintiffs cannot seriously be arguing that Cleopatra's interview of Pyle will somehow cause them reputational harm in light of the fact that, under the Consent Decree, Pyle is one of the core members of In contrast, even a temporary prohibition on the release of the ?lm constitutes irreparable harm because "[t]he loss of First Amendment freedoms, even for minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Bums, 427 U.S. 347, 373 (1976). The balance of hardships and public interest similarly favors denial of the preliminary injunction sought by Plaintiffs. STATEMENT OF FACTS and Its Coverage in the Media As the Court is aware, the rock band popularized the Southern rock genre in the 1970s. The band toured all over the world, released multiple platinum records, and Rolling Stone magazine has named its debut one of the 500 greatest albums of all time. While Lynyrd Skynyrd: Uncivil War Sweet Home Alabama: The Southern Rock Saga Gone With the Wind: The Remarkable Rise and Tragic Fall of Lynyrd Skynyrd Whiskey Bottles and Brand-New Cars: The Fast Life and Sudden Death of Lynyrd Skynyrd Turn It Up! My Years with Lynyrd Skynyrd: Love, Life, and Death, Southern Style The Last Tour: Love, Laughter, and Tears: In Memory of Ron Eckerman Lynyrd Skynyrd: Remembering the Free Birds of Southern Rock crash in 1977 titled Street Survivor: The Story of the Plane Crash (the "Motion Picture"). Id. 11 8. has been beset by tragedy, and several original members have died in the years following the plane crash, including Allen Collins, Leon Wilkeson, and Billy Powell. One of the remaining "original" members of is its former drummer Artimus Pyle, who was on the band's touring plane during the crash in 1977 but survived. (Cohn Declr. 11 11.) With other members of the band, Pyle was inducted into the Rock and Roll Hall of Fame in 2006. To further the historical accuracy of the Motion Picture, Cleopatra planned to have Pyle assist with the writing of the script. (Perera Declr. 11 9.) In summer 2016, Plaintiffs complained about Pyle's role in the ?lm, and to address their concerns, Cleopatra removed Pyle from any involvement with writing any part of the script. Id. Instead, Cohn obtained all of the information that he was able to obtain about the plane crash. (Cohn Declr. 1111 7?10.) He utilized books, ?lms, articles, interviews conducted by third?parties, and websites. Mr. Cohn also consulted Dean Goodman, a historian who has written extensively about the crash. Id. 11 10. And he interviewed Pyle. Id. 11 11. Although Cohn exhaustively researched the history of the plane crash, he is the sole author of the script for the Motion Picture. Id. 11 12. Pyle did not write the script for the Motion Picture; he will not be credited as the writer, director, or producer of the ?lm; and he has no input as to how the ?lm is made, its content, or its ?nal cut. (Perera Declr. 11 11.) Pyle is a witness to the plane crash who Cohn interviewed, and there are few other living eyewitnesses to that event. Pyle has told his story of the plane crash and involvement with to the public numerous times, apparently without objection from Plaintiffs, including: Day Artimus Pyle, Former Lynyrd Skynyrd, Recalls That Horrible available at Grondin v. Rossington Id. band's name. The Consent Decree explicitly authorizes Pyle to use the name and "related matters" when exploiting his own life story "in any medium": Each of the Individual Defendants, Ronnie's Estate and Gaines' Estate shall have the right to exploit his (or with respect to the Estates, the applicable decedent's) own respective life story in any manner or medium, including without limitation, in books or other print publications and in theatrical feature or television motion pictures, without obligation, ?nancial or otherwise, to any other party hereto. In such connection, each of the foregoing shall have the right to refer to and related matters to describe and portray his experience(s) with provided that no such exploitation of life story rights is authorized which purports to be a history of the band, as opposed to the life story of the applicable individual. (Consent Decree 11 3.) The Consent Decree places certain restrictions on the use of the name in connection with live musical performances, including that "two of the following four musicians shall also appear on stage actively performing for substantially the entire concert: Pyle, [Leon] Wilkeson, [William] Powell and [Ed] King." (Consent Decree 1i 2 has been on tour since February 2017. May 11, 2017 Declaration of Donald Conklin Ex. A. The touring band includes Gary Rossington, Johnny Van Zant, Rickey Medlocke, Mark "Sparky" Matejka, Michael Cartellone, Johnny Colt, Peter Keys, Dale Krantz Rossington and Carol Chase. Id. at Ex. B. It does not include Pyle, Wilkeson, Powell or King at least two of which are required by the Consent Decree to participate each time the band performs. Thus, it appears that that Plaintiffs have been ignoring the Consent Decree for some time. ARGUMENT Preliminary injunctions are "extraordinary and drastic remed[ies] that should not be granted unless the movant, by a clear showing, carries the burden of persuasion." Alzheimer?s Found. of Am., Inc. v. Alzheimer's Disease & Related Disorders Ass'n, Inc. Red Earth LLC v. United States Risenhooven v. Bayer Corp. Group Health Plan Accord N.Y. ex rel. Schneiderman v. Actavis PLC See in personam Martin v. Wilks Accord United States v. City of N.Y. Cobalt Multifamily Inv'rs I, LLC v. Shapiro Ass'n for Retarded Citizens of Connecticut, Inc. v. Thorne Id. Accord Martin Madison Square Garden Boxing, Inc. v. Shavers jurisdiction and thus beyond the scope of the All Writs Act." home, 30 F.3d at 370 (holding that state agency was not bound by consent decree entered into by another agency of the very same state). Here, Cleopatra was not a party to the 1988 Action. In fact, Cleopatra was not formed until 1992 and did not even exist at the time of the 1988 Action. Thus, Cleopatra is not bound by the Consent Decree. Other than the Consent Decree, there is no basis for prohibiting Cleopatra from making a ?lm about this band. Even Plaintiffs admit that "Cleopatra is free to make a movie concerning provided it does not violate of the Consent Decree. (J enness/Rossington Declr. 11 22.) B. Cleopatra Has Not Run Afoul 0f the Consent Decree Even if Cleopatra were somehow bound by the Consent Decree (and it is not), Cleopatra has not violated the Consent Decree. Although Plaintiffs attempt to hang their hat on numerous provisions of the Decree (P1. Br. at only paragraph 1 purports to apply to persons who were not parties to the 1988 Action. Plaintiffs argue that Cleopatra violated paragraph 1 by: using the name (11 and using the "name, likeness, portrait, picture, performances or biographical material of' Ronnie Van Zant or Steven Gaines (11 The purpose of the 1988 Action was to resolve which version of the band held the rights to its name. See Grandin v. Rossington, 690 F. Supp. 200, 202 (S.D.N.Y. 1988). The Consent Decree resolved this dispute, making clear who had which rights to the band's name. The Consent Decree does not purport to prohibit third?parties from interviewing parties to the 1988 Action. To the contrary, it explicitly authorizes Pyle to use the name and "related matters" when exploiting his own life story "in any medium": Each of the Individual Defendants, Ronnie's Estate and Gaines' Estate shall have the right to exploit his (or with respect to the Estates, the applicable decedent's) own respective life story in any manner or medium, including without limitation, in books or other print publications and in theatrical feature or television motion pictures, without obligation, ?nancial or otherwise, to any other party hereto. In such connection, each of the foregoing shall have the right to refer to and related matters to describe and portray his experience(s) with provided that no such exploitation of life story rights is authorized which purports to be a history of the band, as opposed to the life story of the applicable individual. (Consent Decree 11 3.) At no point did Pyle convey the band's story rights to Cleopatra. Thus, the Consent Decree explicitly authorized Pyle to use the band and its members' names when providing his own biographical information. Even if the Decree did not explicitly permit Cleopatra to interview Pyle, any references to the band or its members would have constituted a nominative fair use. The trademark laws cannot be used "to prevent the publication of an unauthorized group biography or to censor all parodies or satires which use their name." New Kids on the Block 12. News Am. Pub, Inc., 971 F.2d 302, 309 (9th Cir. 1992) (publisher allowed to use musicians' name for money?generating survey). Similarly, "a defendant may lawfully use a plaintiff trademark where doing so is necessary to describe the plaintiffs product and does not imply a false af?liation or endorsement by the plaintiff of the defendant." i??any (NJ) Inc. v. eBay Inc, 600 F.3d 93, 102?03 (2d Cir. 2010). To the extent that Pyle used any of the Plaintiffs' names in his interview with Cleopatra, he did so because it was the only way to identify such persons and, as a result, any use of the names constituted a nominative fair use. C. Cleopatra Has a First Amendment Right to Publish the Film This is not merely a case in which the defendant has not breached any obligation that it has to the plaintiff This is a case in which the defendant has an af?rmative constitutional right to engage in the speech for which it is being sued: in producing and releasing the ?lm, Cleopatra 10 Joseph Burstyn, Inc. v. Wilson Id Id cf Superior Films, Inc. v. Dep't of Educ. of State of Ohio, Div. of Film Censorship See Schad v. Borough of Mt. Ephraim cf Hicks v. Casablanca Records E.g., ACLU of Illinois v. Alvarez making Southeastern Promotions, Ltd. v. Conrad Alexander v. United States Metro. Opera Ass'n, Inc. v. Local 100, Hotel Employees and Rest. Employees Int'l Union See also Matter of Providence Journal Co. opinion modified on reh'g Procter & Gamble Co. v. Bankers Trust Co. Matter of Providence Journal Co. opinion clarified Id. See also Nebraska Press Ass'n v. Stuart See Near v. State of Minnesota ex rel. Olson Metro. Opera Ass'n, Inc. v. Local 100, Hotel Employees & Rest. Employees Int'l Union N.Y. Times Co. v. United States Id. CBS, Inc. v. Davis Id Procter & Gamble Co. v. Bankers Trust Co. Id. See also Ford Motor Co. v. Lane See CBS Procter & Gamble New York Times Co. Fourth, Plaintiffs may point to the fact that the court's interest in enforcing its order in the 1988 Action justifies a prior restraint in this action. Crosby v. Bradstreet Co., 312 F.2d 483 (2d Cir. 1963) precludes any such argument. There, the district court entered a consent decree prohibiting the company that ultimately became Dun Bradstreet from publishing any information about certain persons' business activities. Id. at 484. Thirty years later, the district court denied a motion to vacate the decree, and the Second Circuit reversed, holding that the decree was an unconstitutional prior restraint: We are concerned with the power of a court of the United States to enjoin publication of information about a person, without regard to truth, falsity, or defamatory character of that information. Such an injunction, enforceable through the contempt power, constitutes a prior restraint by the United States against the publication of facts which the community has a right to know and which Dun Bradstreet had and has the right to publish. The court was without power to make such an order; that the parties may have agreed to it is immaterial. Id. at 485. The court invalidated the thirty?year old consent decree because "there does not seem to be any equity the continuation of an injunction which should never have been entered in the ?rst place." See also Matter of Providence Journal, 820 F.2d at 1353 (reversing contempt citation when order that was violated was an unconstitutional prior restraint of speech). Here, as in Crosby, to the extent the Consent Decree precludes third?parties like Cleopatra from publishing its film, it constitutes an unconstitutional prior restraint on such third? parties. Any temporary or permanent injunction issued in the instant case would similarly constitute an unlaw?al prior restraint. Finally, reading the instant Consent Decree as an order that restrains the speech of third? parties like Cleopatra would be particularly inappropriate. The Consent Decree permits the parties to the 1988 Action to amend the Decree without leave of Court. (Consent Decree 11 37 ("The parties hereto may unanimously agree to amend their respective rights and obligations 15 pursuant to this Order, without seeking further intervention of the Court, provided such shall be in a writing signed by all Thus, if the Consent Decree were read to bind third?parties, it would mean that the 1988 Action parties could impose obligations on third?parties without obtaining the consent of the third?parties or the approval of the court. One judge has referred to such an order as "ludicrous." Procter Gamble, 78 F.3d at 228 (Martin, ., concurring). There is no rationale for prohibiting Cleopatra's publication of the Motion Picture that can withstand First Amendment scrutiny. II. PLAINTIFF HAVE FAILED TO MAKE A STRONG SHOWING OF IRREPARABLE HARM The Second Circuit has repeatedly noted that [p]erhaps the single most important prerequisite for the issuance of a preliminary injunction is a demonstration that if it is not granted the applicant is likely to suffer irreparable harm before a decision on the merits can be rendered." Borey v. National Union Fire Ins. Co., 934 F.2d 30, 33 (2d Cir. 1995). A "mere possibility of irreparable harm" is insufficient to justify the drastic remedy of a preliminary injunction. Id. See also Rodriguez v. DeBuono, 175 .3d 227, 234 (2d Cir. 1999). Plaintiffs' irreparable injury claims are threefold. First, they claim that they are "actively engaged" in the development of a competing film "about the history of and "there is a limited and uncertain market for motion pictures about the band, and the Defendants' production will dilute the market, causing irreparable injury to the Plaintiffs' right to produce and distribute their prospective motion picture." (Pl. Br. at 8.) Second, they claim that there is a substantial risk that "customers will be confused as to the source of the Motion Picture." Id. Third, they maintain that there is "a substantial risk of reputational harm to the Plaintiffs as a result of any objectionable content concerning Ronnie Van Zant, or Steven 16 Id Worldwide Diamond Trademarks, Ltd. v. Blue Nile, Inc Tom Doherty Assocs., Inc. v. Saban Entm't, Inc Worldwide Diamond JSG Trading Corp. v. Tray–Wrap, Inc See Ascroft v. Iqbal See Burroughs v. Metro-Goldwyn Mayer, Inc aff'd E.g., CRP/Extell Parcel I, L.P. v. Cuomo Worldwide Diamond Clonus Assocs. v. Dreamworks, LLC See Consumers Union of United States, Inc. v. General Signal Corp In re United Pan-Europe Comms, N.V see also Nat'l Football League Players Ass'n v. Nat'l Football League Props., Inc Worldwide Diamond See, e.g Lynyrd Skynyrd, Recalls That Horrible Day Saratoga Vichy Spring Co., Inc. v. Lehman Elrod v. Burns Accord N.Y. Progress & Prot. PAC v. Walsh Artimus Pyle, Former available at See Procter & Gamble See, e.g., N.Y. Times Co Monster Comms., Inc. v. Turner Broadcasting Sys., Inc See Crosby Matter of Providence Journal See, e.g., Nintendo of Am., Inc. v. Lewis Galoob Toys, Inc Hoechst Diafoil v. Nan Ya Plastics Corp CONCLUSION For the reasons set forth above, Defendant Cleopatra Records, Inc. respectfully requests that the Court deny Plaintiffs' motion for a preliminary injunction and grant it such other and ?thher relief as it deems just and proper. Dated: New York, NY May 1 l, 2017 Respectfully submitted, MANDEL BHANDARI LLP By: Evan Mandel Evan Mandel Donald Conklin 80 Pine Street New York, NY 10005 T: (212) 269-5600 F: (646) 964-6667 em@mandelbhandari.com 24