Part 2: Brown, Garcia & Hendrix— Estate Nightmares?

by Tamera H. Bennett
with research assistance from Mitch Mitchell

James Brown, Jerry Garcia, and Jimi Hendrix all held very different spots in the world of music and entertainment ….. Part one of this post on James Brown is here.

Jerry Garcia

The latest suit against assets once controlled by Jerry Garcia involves the trust holding the publicity rights of musician Merl Saunders vs Jerry Garcia Estate, LLC.  Click here for a link to the First Amended Complaint filed June 26, 2009 in the Northern District of California.

Merl Saunders performed hundreds of times with Garcia primarily as the “Merl & Jerry Band.”  The complaint alleges there was a partnership between Merl Saunders and Jerry Garcia regarding equal name billing and a 50/50 split of profits and losses as to performances and recordings made as Merl & Jerry.  There were numerous master recordings/sound recordings of the “Merl & Jerry Band” and the complaint alleges those were owned jointly.

In December 2004 a CD set entitled “Pure Jerry: Jerry Garcia & Merl Saunders Band, Keystone Berkley, September 1, 1974 was commercially released.  Released June 28, 2005, was a CD set entitled “The Jerry Garcia Collection, Vol. 1: Legion of Mary” (“LOM Vol. 1”) which contains Jerry and Merl sound recordings.

Saunder’s trust claims the releases were never authorized, there has been no accounting for Saunder’s ownership in the sound recording copyrights or for the use of Saunder’s name and likeness in promoting the releases.

The original complaint, filed December 28, 2008, and the amended complaint,  allege violations of Saunder’s right of publicity as well as unfair competition and a demand for an accounting.

The Saunders Trust may be too late on bringing some of their claims.  The statute of limitations for violation of the California right of publicity statute is four years.  For the release in December 2004, the trust may have missed their time to file by only a few days.  The complaint alleges the plaintiffs were not aware of the release until some time after the actual release date.

The Lanham Act does not set out a specific statute of limitations for a False Endorsement/Unfair Competition claims, but relies upon a theory of laches to determine the applicable statute and such laches time frame is usually taken from the analogous state law.  There is a four year statute of limitations for state law unfair competition claims in California, and a discovery rule/tolling period does not always apply.

As to the accounting between co-owners of a copyright, the claim can be brought at any time, but some courts have limited the recovery to a look back of three years from the time the lawsuit was filed.

An additional defense to the claims of breach of right of publicity and unfair competition is simply that inherent with the rights as co-owner of a copyright, when the copyright, ie, the sound recordings are released, the co-owner may include attribution to the joint owner.  I believe the Plaintiffs could have won on a right of publicity and/or unfair competition claim had Mr. Saunders not been listed, but that they will be unlikely to recover anything more than an accounting between co-owners of a copyright in the case at hand.