Category: Contracts

Second Circuit Vacates Injunction That Had Enjoined Release of Lynyrd Skynyrd Movie

Case Name: Ronnie Van Zant, Inc. v. Artimus Pyle – Second Circuit

Date of Opinion: October 10, 2018

Opinion by: Per Curiam; Judge Newman & Judge Hall (concurring)


Defendant-Appellants appeal a permanent injunction decree issued by the United States District Court for the Southern District of New York that prohibited the release and distribution of a film surrounding the plane crash of the Lynyrd Skynyrd Band.

The Lynyrd Skynyrd band was founded in the 1960s by Ronnie Van Zant (“Ronnie”), Gary R. Rossington, and Allen Collins. In 1975, Artimus Pyle joined the band as a drummer. On October 20, 1977, the band was in a plane crash that killed lead singer, Ronnie, and several other members. Pyle, Rossington, and Collins survived the crash. Following the tragic crash, Ronnie’s widow, Judith and the surviving members entered into an oath, in which they agreed to never use the Lynyrd Skynyrd name ever again. For a period of ten years, the promise was honored. However, in 1987, the surviving band members embarked on a Lynyrd Skynyrd tribute tour. Judith took issue with the use of the band’s name and sued the members in the United States District Court for the Southern District of New York. At the conclusion of that suit, the district court issued a Consent Order limiting the members’ ability to use the band’s name and the biographical material of Ronnie, while allowing the surviving members “to exploit their life stories and portray their experiences with the band in movies.” That Consent Order is the basis for this present appeal.

Thereafter, in 2016, Pyle agreed with Cleopatra Records, Inc. to film a movie about Lynyrd Skynyrd and the events surrounding the 1977 plane crash. The contract provided that the story would be told “’through the recollections and experiences of Pyle.’” When plaintiffs, former band members and their trustees and representatives, learned of the film via press release, they sent a cease and desist letter to Cleopatra Records, Inc. Cleopatra Records, Inc. responded, asserting that it had no agreement with the plaintiffs and that it had a First Amendment right to produce and distribute the movie, and moved forward with the movie production. Plaintiffs sought judicial redress in the United States District Court for the Southern District of New York. After reviewing the final script, the district court ultimately concluded that the plaintiffs were entitled to a permanent injunction prohibiting the distribution of the film and other related activities. The defendants appealed this decision, Continue reading

Second Circuit Rules That Hartford Archdiocese is Entitled to Insurance Coverage for Prior Sexual Abuse by its Priests

Case Name: Hartford Roman Catholic Diocesan Corp. v. Interstate Fire & Cas. Co. – Second Circuit

Date of Opinion: September 19, 2018

Opinion by: Judge Jacobs


The Roman Catholic Archdiocese of Hartford (“Archdiocese”) purchased excess indemnity insurance policies from Interstate Fire & Casualty Company (“Interstate”) for the period between September 1, 1978 and September 1, 1985. The Archdiocese later sought reimbursement from Interstate for damages that it had to pay in a settlement agreement with four claimants seeking compensation for sexual abuse inflicted by priests in the Diocese. Interstate refused to pay on grounds that the priests’ molestation was not covered by the policy, because the policy had an exclusion for “assault and battery committed by or at the direction of such assured.” Interstate argued that the priests were among the assured, and so the policy did not cover their molestation (a form of assault and battery).

The Archdiocese ultimately sued in the United States District Court for the District of Connecticut, alleging that Interstate had breached its contract, breached the covenant of good faith and fair dealing, and violated the Connecticut Unfair Insurance Practices Act and the Connecticut Unfair Trade Practices Act. The District Court ruled for the Archdiocese on the breach of contract claim, but for Interstate on the other claims. Both sides appealed.

The Second Circuit affirmed in full. As to the breach of contract claim, the court found that the “assault and battery” exclusion was inapplicable here, because it only applied to an assured “acting within the scope of his duties,” and the assailant priests (even if they could be considered assureds) were not acting within the scope of their duties. Similarly, the wording excluded coverage only to those assured who actually committed or directed the assault, and did not exclude coverage to the other assureds (such as the Archdiocese). Continue reading

Second Circuit Holds Independent Photographers’ Copyright Infringement Suit Can Proceed Against the NFL and Associated Press

Case Name:  Spinelli v. National Football League – Second Circuit

Date of Opinion:  September 11, 2018

Opinion By: Judge Lynch


Beginning in 2009, the Associated Press (AP) has been the exclusive licensing agent for National Football League (NFL) league and team intellectual property, including photographs containing NFL logos and other intellectual property. Under the original 2009 licensing agreement, AP had broad authority to distribute commercial licenses for photographs containing NFL intellectual property. Plaintiffs, seven independent photographers, entered into “contributor agreements” with the AP to obtain access to NFL events and licenses for the intellectual property contained in photographs taken at NFL events. In essence, under the contributor agreements, the photographers retained ownership of the photographs and the right to sue for infringement, but granted the AP broad license to use and license the use of the photographs. In return, plaintiffs were to be paid royalties for certain uses.

The 2009 licensing agreement between the AP and the NFL included a broad complimentary license to the NFL for “AP-Owned Photos,” but did not grant to the NFL the same broad license for photographs owned by non-AP contributing photographers. A renewed licensing agreement executed in 2012, however, purported to amend the complimentary license granted to the NFL to include the right “to make Editorial use and/or marketing and charitable uses of . . . ‘AP-Contributor’ Photos’” in addition to AP-Owned Photos.

Thereafter, in October 2013, the seven non-AP contributing sports photographers brought suit in the United States District Court for the Southern District of New York against the AP, the NFL and NFL-affiliated teams, and Replay Photos, which sells NFL-related photographs online. Plaintiffs alleged that the NFL and Replay Photos had been extensively using their photographs in promotional and commercial materials without compensating them, and that the AP unlawfully granted the NFL a complimentary license with respect to photographs owned by them in the 2012 renewed licensing agreement without their knowledge or consent. After the defendants successfully moved to dismiss, plaintiffs amended their complaint asserting claims for copyright infringement, breach of implied covenant of faith and fair dealing, unconscionability, fraud, and Sherman Act violations. Defendants again moved to dismiss and the District Court ultimately dismissed all of the claims.

On plaintiffs’ appeal, the United States Court of Appeals for the Second Circuit vacated the dismissal of several of the claims. Continue reading