Thursday, June 17, 2010

The Sincerest Form of Flattery

I have been following with interest the case of Robinson v. Petty in which the heirs of the late great Marty Robbins sued Jason Petty over his portrayal of Robbins in the tribute performance “Marty’s El Paso.” This case, which was pending in the United States District Court for the Middle District of Tennessee, settled on June 7. At issue in this case was not only the rights to such songs as “El Paso” and “White Sport Coat,” the renewal rights of which are owned by the Robinsons, but also the use of Robbins’ name, image and likeness, which are protected somewhat by a Tennessee statute passed in 1984, after the death of Elvis Presley. The Plaintiff also sued for federal trademark infringement, common law trademark infringement, and violation of the Tennessee Consumer Protection Act and Tennessee common law of unfair competition. Marty Robbins died in 1982. Musical tribute shows of all types are becoming an important facet in the entertainment economy, from Beatles tribute bands to the successful run of “Million Dollar Quartet” on Broadway, from “Always… Patsy Cline,” to the legendary Cheap Trick performing the even more legendary “St. Pepper’s Lonely Hearts Club Band” in its entirety. All of these examples, with the exception of the Cheap Trick performance, have engendered some sort of litigation. The Beatles’ company Apple is notorious for protecting its trademarks, as it probably should be. The common element uniting each of the presentations is that they require some degree of licensing from the underlying rights holders. Performers need to be sure that if their show is a dramatic/musical performance, that they have secured the grand performance rights from the appropriate music publishers. They also have to figure out if there are trademark issues or name, image and likeness issues involved. Although the various elements of these types of issues have been around forever, as performers seek new ways to earn a living playing music, the intersection of these rights will present a fascinating and complex emerging development in entertainment law.

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