On Friday, Aretha Franklin succeeded in blocking the concert documentary Amazing Grace from playing on the opening night of the Telluride Film Festival. The legendary singer got so much R.E.S.P.E.C.T. that a federal judge in Colorado didn't even bother in his three-page ruling to examine whether the film using Sydney Pollack-shot footage of her 1972 concert performance was privileged under the First Amendment.
We don't typically comment on the wisdom of judges in the cases we cover, but in this instance we'll make an exception because an appellate review is uncertain and the ruling marks a terrible precedent -- one we'd argue is even more dangerous than than the since-reversed 9th Circuit decision last year to allow actress Cindy Lee Garcia to assert a copyright claim on Innocence of Muslims, a film in which she appeared. In that case, Google, Netflix, news organizations, documentary filmmakers and others stood together to warn about the ramifications of letting performers have veto rights on downstream distributors. Ultimately, the en banc panel at the 9th Circuit agreed with them in an opinion that stated "a weak copyright claim cannot justify censorship in the guise of authorship."
At least Garcia had a good theory why she retained copyright on her performance. In the Franklin case, the singer evidently had no plausible claim to owning the footage or else she would have asserted one. Instead, it's pretty clear she did not own rights to Pollack's footage when she agreed to have her concert filmed. Instead, she piggy-backed on a federal anti-bootlegging statute as well as asserting that the Amazing Grace producer had a contractual obligation to get her permission and thus violated her right of publicity when he didn't.
Her publicity rights allow her to protect her name and likeness, but if such a right is unfettered, Franklin could have a judge order this very column to be wiped from the Internet.
What has traditionally stood in the way of those looking to use publicity rights to enjoin creative works is two things. First, state-based publicity rights get preempted by copyright when the rights at issue are deemed within the scope of federal law. The distribution of a performance within a film seems to fit. See how ESPN was able to beat a former professional wrestler's publicity rights claim over the rebroadcast of old matches as an example how this works. Second, judicial leeriness on issuing prior restraints on constitutionally-protected speech usually interferes with a preliminary injunction.
Here, the closest that U.S. District John Kane gets to taking on the pertinent issues is by saying that a film that "essentially re-creates the entire concert experience is not fair use of this footage."
Kane comes to this conclusion because he seemingly is distracted by an old quitclaim deed presented by Franklin's attorney that stated that the assignee of footage would need to obtain her authorization. But even if the contract language was unambiguious -- we think there's room for argument over how Franklin's consent is satisfied (e.g. PRO license?) -- keep in mind that the lawsuit that Franklin brought was not against the producer, but rather against the Telluride Film Festival, which was not party to this contract and has not been alleged to be in prospective breach of it. The analysis should thus be whether the film festival itself can use her name and likeness in the exhibition of a motion picture.
In Colorado, a plaintiff can't prevail on a publicity rights claim if a defendant's use of the plaintiff's name and likeness is privileged under the First Amendment. That much is clear by prior cases. The state's Supreme Court has held the analysis turns on two issues -- whether the use is primarily commercial or noncommercial and whether such use reasonably relates to a publication concerning a matter that is newsworthy or of legitimate public concern. Feature films are almost always deemed noncommercial (as opposed to, say, an advertisement) while the public concern of Amazing Grace is a toss-up.
Even if Franklin wins this analysis and shows she has a likelihood of prevailing in her lawsuit, under the proper standard of law, she then needs to demonstrate "irreparable harm" to obtain an injunction. In past court cases, judges have refused to enjoin works even when defamation can be shown or even when someone's privacy rights are being violated. Publicity rights should theoretically evoke an even higher bar because what's being protected is commercial use of their identity.
Franklin asserted that she faced irreparable harm if Amazing Grace was shown at Telluride. The judge appears to have accepted her word without substantial exploration. Why didn't Franklin bring this lawsuit much sooner than the eve of the film festival? After all, she's been threatening it for some time. Why wouldn't monetary damages suffice to compensate her for any injury? Kane is mum on those questions even though it seems quite certain that if she's suffering a commercial injury, the value could be determined at trial. Instead, Kane has opted for the kind of extraordinary injunctive relief that has frequently been slammed by the U.S. Supreme Court. (Here's one of many examples.) Worse, he appears to shift the burden to the defendant. "The balance of the equities weighs in favor of Ms. Franklin," writes the judge. "The Film Festival (and Mr. Elliot [the producer]) could have clarified their claimed right to release this footage well in advance of this showing."
Judge Kane has done a disservice by issuing a hasty ruling on a last-minute injunction bid — telling THR that this one was an easy call because producer Alan Elliott needed Franklin's permission. Except that's not what he was being asked to adjudicate! Elliot wasn't the defendant after all. Instead, film festivals (and distributors and news organizations) now have to worry about prior restraints on use of a celebrity's likeness and name. And sorry, Aretha, but this is hardly good news for artists who often use the names and likenesses of other artists in their creative endeavors. If she had made a deal that gave her the copyright on the footage -- meaning the ability to control reproduction and distribution -- that would be one thing; Here, she's attempting the ride the same vehicle that Lindsay Lohan attempted to use to stop a Pitbull song that mentioned her.
Telluride is now over, and the film festival might not have the financial incentive to pursue this one up to the 10th Circuit Court of Appeals. Meanwhile, Amazing Grace has been pulled from the Chicago Film Festival and withdrawn from the Toronto International Film Festival. We think it's a decent bet that eventually, Elliot and Franklin will be able to resolve their differences through a settlement. Unfortunately, that will hardly be a saving grace as the stink of this ruling may long outlive the public interest in this particular film.
This article was originally published by The Hollywood Reporter.