Aretha Franklin: The Not so sweet sound of Amazing Grace

aretha

Aretha Franklin the Queen of Soul, filed an emergency injunction with the aim to step the scheduled screenings of the documentary “Amazing Grace” that was to be shown at the Telluride Film Festival and subsequently the Toronto International Film Festival and the Chicago Film Festival.

History of the Documentary

The content of the documentary were stills shot of a concert performed by Ms. Franklin at the New Missionary Baptist Church in Los Angeles, California in 1972. The performance was shot by the late Sydney Pollack. The shoot itself back in 1972 was plagued by sound issues, it has been stated that the project was abandoned over the years due to the fact that the sound clappers boards which would have synchronised the sounds with the still images were not present during the shoot.

The film was then shelved because at the time, there was no technology available to properly sync the audio and video. Years later, after discussions with Mr. Pollack, Mr. Allan Elliot, a producer acquired the rights to the film from Warner Brothers and used the available technology to sync the movie with digital technology.

There has been significant dispute over the ownership of the footage over the years. Ms. Franklin sued the film produced Mr. Elliot in 2011. Mr. Elliot made representations that he would release the film but reneged as Ms. Franklin discovered that the film was to be released during the Telluride Film Festival. Upon that knowledge, Ms. Franklin applied for a legal injunction and received one barring the release of the film during the festivals.

It has been suggested by Ms. Franklin that contract signed in 1972 is clear in that it explicitly states that under said agreement, the documentary would “not be publicly or commercially released without the consent of Ms. Franklin”.

Mr. Elliot on the other hand claims that he is of the opinion that Franklin’s “personal services” contract with Warner Bros.’ film studio and record label,  gave the studio full rights to the material filmed in the church which was subsequently acquired by him.

Pertinent Questions about Civil Procedure in the US

LEGAL CONSIDERATIONS

JURISDICTION

The court documents show that the papers were filed with the District Court of Colorado.

Why choose the district court?

  1. The United States Code Title 28 Chapter 85 Section 1332 (a) where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs

and

  1. (a)(1) When it comes to citizens of different states.
  2. Franklin and her legal team stated that they sought jurisdiction in Colorado because Mr. Elliott traveled to Colorado for the planned screening at Telluride, and asserted that he was attempting to generate interest in a distribution deal for the film while he was there.
  3. There is a matter to be dealt with that deals with federal statute (this will be discussed later on).

INJUNCTIONS

What is an injunction?

An injunction is what is known as an equitable remedy. An equitable remedy as opposed to a legal remedy is one based on the principle of fairness that provides flexible responses that either compel or prohibit an act. Legal remedies on the other hand are used by the judicial officers to enforce a right or impose a penalty.

There are several types of injunctions namely a prohibitive, mandatory, permanent and interlocutory injunction. Now even though it has been mentioned that an injunction is an equitable remedy it will be only granted when there is support that the plaintiff has legal or equitable rights in the matter before the court. For the purpose of this article, it is important to note that an interlocutory injunction is one that is done to preserve the status quo so to speak.

Why was this strategy utilized by Ms. Franklin’s legal team? What is an emergency restraining order?

In this case, the legal team for Ms. Franklin sought a temporary restraining order. A temporary restraining order is a form of an interlocutory injunction. This application is made to the court without notice to the other affected parties. Now this occurs where there would be irreparable harm or alternatively where the injury that would be suffered cannot be compensated. A prohibitive injunction prohibits the person to whom it is directed from performing a particular act by commanding that person to refrain from doing or continuing the act in question. The order binds both the direct acts of the person and the indirect acts of the person through agents or employees.

First, the applicant must show that the claim presents a serious question to be tried as to the existence of the right alleged and a breach thereof — actual or reasonably apprehended.

Second, the applicant must establish that, without an injunction, irreparable harm will occur.

In short, it must be shown that:

1)  There is a likelihood of irreparable harm with no adequate remedy at law;

2)  The balance of harm favors the movant;

3)  There is a likelihood of success on the merits of the case; and

4)  The public interest favors the granting of the injunction.

Courts Determination

On the 4th, 2015, the Court issued a temporary restraining order, essentially a prohibitive interlocutory injunction barring the Telluride Film Festival from screening the Film and subsequently TIFF.

 

What happens after a temporary restraining order?

The very nature of a temporary restraining order means it is made without notice and this can be done pursuant to rule 65 of the Federal Civil Rules as pertains to civil procedure. The temporary restraining order once granted is only effective only for a limited time period. It tends to be in and around 14 days unless the court, decides to extend the time period or the adverse party consents to a longer extension.

After the order is entered, the moving party then informs the other party of the order by serving the documents on them.

According to the court documents, Mr. Elliott, through his counsel, was informed of the Court’s T.R.O. against the Telluride Film Festival, and on later on September 9, 2015 was given a copy of the transcript from the hearing where the Court explained why the Film should not be shown without Aretha Franklin’s consent. Additionally, on September 8, 2015, Mr. Elliott’s counsel agreed via e-mail that Mr. Elliott would not show the Film publicly according to the court document. Mr. Todd W. Musburger stated, “We fully respect the notion that there will be no public showings. You have my word on that.”

So what is currently the problem? What is Ms. Franklin’s team seeking?

The two week restraining order did not resolve the issue at hand over the concert footage. Despite assurances made, Ms. Franklin’s legal team became aware through press inquiries, that Mr. Elliott on the 21st of September was holding a screening of the Film in Toronto for commercial purposes for film executives and others. The screening was allegedly attended by film industry executives for the particular purpose of obtaining a distribution agreement for the Film and this was done without Ms. Franklin’s permission or knowledge, and was contrary to Mr. Elliott’s counsel’s specific representations.

Ms. Franklin’s counsels are currently aiming for:

  1. A declaratory judgment that Mr. Elliott, his agents, employees and all those working in concert with him, be required to get permission/authorization from Ms. Franklin in order to screen, show or project the Film in public or for any intended commercial purposes.
  1. A preliminary and permanent injunction against Mr. Elliott, his agents, employees and all those working in concert with him, barring them from publicly screening, showing or projecting the Film “Amazing Grace,” or any footage from the 1972 gospel concert, or using or showing the Film or any such footage for commercial purposes without the permission of Ms. Franklin. They are claiming this right as per the Quitclaim Agreement that provide her with contractual rights regarding the 1972 footage. Since the preliminary hearing has been heard and a TRO ordered, the next step would be a permanent injunction.
  1. To find Mr. Elliot in violation of a tort. In this particular case, the violation of the common right of publicity which is a state law. In California, the right of publicity protects the use of a person’s name, voice or likeness through 3344(a) of the California Civil Code.
  • What is a tort?

A tort is a civil wrong, other than a breach of contract, which the law will redress by an award of damages. Tort is distinguishable from a criminal wrong. In tort law, there rules governing the relationships between the two parties has evolved mostly under common law. To establish a tort, there are elements that must be proved and once that is done, the claimant has a prima facie case and will most likely succeed. There must be a duty of care, then a breach of said duty, whether the claimant suffered damages and if the breach of the duty by the defendant was the causation of said damages

  • Right of Publicity

California’s statute protects against uses of a person’s likeness for advertising purposes. Specifically, the statute prohibits “knowing” use of a person’s name/likeness/etc., on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person’s prior consent.

Ms. Franklin’s team claims use of this footage and other images of Ms. Franklin, without Ms. Franklin’s consent, violate her rights of publicity. They are seeking the injunctive relief and in excess of $75,000, including her attorney fees and costs.  Further, they are seeking punitive and exemplary damages.

  1. To find Mr. Elliot culpable and in contravention of the anti-bootlegging claim.

Bootlegging is dealt with by the federal court.  The United States Code Title 17 Chapter 11 Section 1101(l) provides in pertinent part: (a) Unauthorized Acts.–Anyone who, without the consent of the performer or performers involved— (1) fixes the sounds or sounds and images of a live musical performance in a copy or phonorecord, or reproduces copies or phonorecords of such a performance from an unauthorized fixation, (2) transmits or otherwise communicates to the public the sounds or sounds and images of a live musical performance, or (3) distributes or offers to distribute, sells or offers to sell, rents or offers to rent, or traffics in any copy or phono record fixed as described in paragraph (1), regardless of whether the fixations occurred in the United States, shall be subject to the remedies provided in sections 502 through 505, to the same extent as an infringer of copyright . Ms. Franklin’s team argues that there is no doubt that she is the performer in the footage and Mr. Elliot has expressed his intent to proceed without her consent and thus is in violation.

  1. Find Mr. Elliot in breach of contract as pertains to Ms. Franklin’s position as a third party beneficiary. The Quitclaim Agreement between Warner Brothers Pictures and Defendant stated that Ms. Franklin’s consent was condition precedent to Defendant Elliott using the film footage that he obtained via the agreement. Mr. Elliott has decided to release the Film in violation of the terms of the Quitclaim Agreement for his own commercial gain.

Only time will tell, or the filing of answering documents by Mr. Elliot and his legal party to determine whether or not he has any defence to the claims set out. As the claim is currently set out, it seems highly unlikely that Mr. Elliot will succeed.

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