On September 4, just hours after legendary soul singer Aretha Franklin submitted her complaint, a federal judge granted an emergency temporary injunction to enjoin Allen Elliot’s Amazing Grace documentary from screening at the Telluride Film Festival.  Documentary filmmakers, and potentially all creative workers, should Say a Little Prayer that this hasty (3 page) decision is just a legal anomaly.
On September 4, mere hours before Amazing Grace was set to premiere at the Telluride Film Festival, U.S. District Judge John Kane of the District of Colorado granted Aretha Franklin’s motion for an emergency injunction to stop the debut. The film is composed mostly of footage filmed by Sydney Pollack at Franklin’s landmark 1972 performance in the Los Angeles New Missionary Baptist Church.  Franklin, however, did not consent for the film to use her name, image, or likeness. The judge held that the quitclaim deed, through which the rights to the footage were transferred from Warner Bros. Studio to Elliot, prohibits broadcasting of the footage without such consent from Franklin.  This is true, according to the judge’s interpretation of the original contract, even though Elliot owns the copyright for the footage.  Thus, because Franklin did not give her express permission to Elliot, the judge granted the injunction.  Furthermore, because eighty percent of the film’s footage comes from Franklin’s 1972 performance, the judge also held the film violated a federal anti-bootlegging statute.
The injunction is only the most recent delay of many that have occurred in the over forty years since Pollack first captured the performance on film. [1]  It is potentially, however, the delay with the biggest possible legal ramifications.
Judge Kane’s granting of Franklin’s injunction is unprecedented because courts very rarely enjoin expressive speech where the Fist Amendment is potentially implicated.  Without citation to any relevant case, and certainly without distinguishing the cases that go against the proposion, Judge Kane disposed of this fundamental issue in one sentence: “A film that essentially recreates the entire concert experience is not fair use of this footage.” Furthermore, Franklin did not rely on copyright claims to support her motion for injunction, but rather on the aforementioned federal bootleg and right to publicity arguments.
The question of Franklin’s publicity rights is another reason why this decision breaks from past precedent. In this case the film festival, and not the producer (Elliot), is the defendant. The quitclaim deed prohibits the assignee of the footage (Elliot) from broadcasting it without Franklin’s permission. That is all well and good.  However, since Franklin does not seem to be asserting Telluride Film Festival violated the contract (and how could it, if is not a party to the contract?), the real question should have been whether the film festival is violating Franklin’s right to publicity by exhibiting the film.
Franklin is correct that the right to publicity protects her name and likeness. The Supreme Court established that basic principle of the First Amendment in the seminal case Zacchini v. Scripps-Howard Brodcasting.  There, Zacchini, a human cannonball, sued Scripps-Howard because they had shown video footage of his human cannonball act on television.  Zacchini argued that his entire show (and therefore his livelihood) depended on the novelty of people witnessing his act firsthand, and so by broadcasting the act on television, the station was depriving him of his income through inappropriate use of his image and likeness.  That argument ultimately won the day.  It is important to note, however, that the commercial element of the deprivation was the key factor in Zacchini (and in the other publicity rights cases that followed). The judges were concerned that by permitting the station to broadcast Zacchini’s entire performance, Zacchini, and others like him, would stop innovating different ways to entertain the public.  Judge Kane’s interpretation of the right of publicity is so expansive, however, that if it is not checked not only would Franklin have the right to protect her name and likeness, but she would also essentially be able to call for the taking down of virtually any piece of media that did so much as mention her name—from a magazine review of one of her concerts to a Buzzfeed “Which Pop Diva are You?” quiz.
For a defendant to misuse someone’s name and likeness in Colorado his or her use must be primarily commercial and not be of public interest. Although films are made to profit, they are not deemed “primarily commercial” in the same way that advertisements are.  Even if Franklin shows Elliot misappropriated her name and likeness, however, in order to properly get an injunction Franklin needed to show not only that she had a significant chance at succeeding in the lawsuit, but also that the broadcast of the film caused her irreparable harm that monetary damages would not adequately address.
Another controversial aspect of Judge Kane’s decision is his willingness to endorse the prior restraint of expressive speech through a preliminary injunction.  Similarly, Judge Kane also diverts from the general rule that state-based publicity rights are usually preempted by federal copyright law when it is also in issue.  In Ray v. ESPN, for example, the 8th Circuit found that federal copyright law preempted wrestler Steve “Wild Thing” Ray’s claim that ESPN had violated his Missouri publicity and privacy rights by rebroadcasting his old matches on ESPN Classic.  That case established that federal copyright trumps a plaintiff’s right to his image and likeness that likeness “could not be detached from the copyrighted performances that were contained in the films.” According to that decision, the only exception would be if the defendant were to engage in some activity more commercial than a mere rebroadcasting, such as using the plaintiff’s name or likeness in its promotional materials without the plaintiff’s permission. Judge Kane ignores this line of reasoning completely in the Franklin case.
All in all, Judge Kane’s decision sets a dangerous precedent that tacitly endorses prior restraint, ignores the preemptive effect of federal copyright law, and establishes an overly broad interpretation of publicity rights.  Should this opinion set the standard for subsequent cases with similar fact patterns, it very well may start a Chain of Fool-ish precedent.
[1] The film was initially delayed because Pollack filmed the concert without syncing the video and the audio. Then, after Elliot received the rights to Pollack’s footage from Warner Bros. Studio and attempted to premiere the film in 2011, Franklin sued and the parties eventually settled.
Mark Sanchez is a J.D. candidate, ’17, at the NYU School of Law.