Studio loses key ruling in battle with soul icon
By Eriq Gardner
LOS ANGELES (Hollywood Reporter) - A federal judge in Tennessee has rejected a bid by the Weinstein Company to dismiss a lawsuit from soul legend Sam Moore that contends the studio's 2008 film "Soul Men" violated his trademarks and rights of publicity.
The judge let company principals Harvey and Bob Weinstein off the hook personally due to jurisdictional issues, but the surviving lawsuit against the studio could be important. The case could determine whether studios have a free speech right to make biographical movies about public figures without getting permission.
Sam Moore was part of the popular singing duo Sam & Dave, which helped invent "Memphis Soul" through chart-topping singles like "Soul Man," released in 1967.
Moore alleges that in 2003, the Weinstein brothers became familiar with him while producing the soul music documentary "Only the Strong Survive." A few years later, the Weinsteins began work on a new film, "Soul Men," starring Samuel L. Jackson and Bernie Mac. The picture portrays "fictional" soul singers with similar background and experiences as Sam & Dave. The main characters even sing Moore's songs.
Moore complained to the Weinsteins after reading the script because he was concerned about his reputation, considering that the main character uses racial slurs, swears, refers to woman as "bitches" and brandishes weapons. He was told he had no case but was offered a cameo role, which Moore found to be insulting.
So he sued. In February 2009 he filed a lawsuit claiming his publicity rights were violated and that he held the trademark on "Soul Men."
Weinstein claimed that the movie was a fictional comedy and, even if it was about the duo, it was a biographical work about public figures, protected by the First Amendment governing free speech. Weinstein also said the movie was an "expressive work" and even if Moore held trademark on "Soul Men," it had a First Amendment fair-use right to use the title as long as it didn't mislead consumers.
In his decision last Wednesday, Judge Aleta Trauger rejected those arguments. The judge said the use of the "Soul Men" mark in a competing title may be shown to be confusing, claims of trademark dilution extend beyond pure commercial speech, and the defendants can't assume that a life story about a public figure is protected under the First Amendment.
Weinstein attorney Bert Fields said a trial would prove the movie wasn't Moore's story. He also believed an appeals court would rule in his client's favor on the legal issues. "I think it's quite clear you can't protect the life story of a public figure this way," he said. "That's going too far."
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