A trio of federal appellate judges in New York have taken a rare role typically reserved for Hollywood moguls: They have green-lighted a biopic that touches on the tragedy involving a band that pioneered the Southern rock sound decades ago, with hits like Sweet Home Alabama, Freebird, and What’s Your Name.
The movie, Street Survivor: The True Story of the Lynyrd Skynyrd Plane Crash, had gotten hung up in legal controversies that roiled not only film makers but also First Amendment advocates.
But, ultimately, the U.S. Court of Appeals for the Second Circuit set Street Survivor “free as a bird” due to determined flaws in an area familiar to even a second-year law student: questions about the precision and meaning of an agreement drafted among disputing parties.
This case, much watched in some sectors of the movie industry, started 41 years ago, as members of the Lynyrd Skynyrd band set off for on what was to be their largest national tour to date. Tragedy struck the group on their flight from Greenville, S.C., to Baton Rouge, La., when a mechanical error caused their plane to crash, leading to the deaths of three band members.
The surviving band members agreed to abandon the Lynyrd Skynyrd name and refrain from seeking commercial gain from the incident. But in 1987, this pact — which also was formalized in a consent decree to settle a lawsuit among surviving band members and heirs of their onetime colleagues — was forgotten when they reunited for a tribute tour under the following conditions:
“Each of the individual Defendants…shall have the right to exploit his…own respective life story in any manner or medium, including…[a] motion picture… in such connection, each of the foregoing shall have the right to refer to ‘Lynyrd Skynyrd’ and related matters and to describe and portray his experience(s) with ‘Lynyrd Skynyrd;’ provided that no such exploitation of life story rights is authorized which purports to be a history of the ‘Lynyrd Skynyrd’ band, as opposed to the life story of the applicable individual.”
But Artimus Pyle, a band drummer who was a signatory to the consent order, later partnered with Cleopatra Films to make a movie. It focused on his life and his contribution in the band to southern rock’s popularization.
That drew the ire of the heirs of the others who had singed the ’87 agreement. They sued Cleopatra, seeking a court order barring the public release of the film Street Survivor. They argued that the film making company acted “in concert or participation” with Pyle, which violated the standing agreement about the Lynyrd Skynyrd legacy, which includes enshrinement in the Rock & Roll Hall of Fame.
In 2017, a federal court ruled in favor of the plaintiffs, with U.S. District Judge Robert W. Sweet in Manhattan, writing: “Cleopatra is prohibited from making its movie about Lynyrd Skynyrd when its partner substantively contributes to the project in a way that, in the past, he willingly bargained away the very right to do just that; in any other circumstance, Cleopatra would be as ‘free as a bird’ to make and distribute its work.”
This decision shocked Hollywood. And when Cleopatra appealed Sweet’s ruling, entertainment heavyweights united in filing a friend of the court brief. It sought to inform the court about the considerable hard work and research that goes into making a film, asserting that upholding Sweet’s injunction would discourage writers from making quality films that depict real life events.
That concern also reached beyond Tinsel Town. In a separate amicus brief from the Reporters Committee for Freedom of the Press and 13 media organizations, news organizations argued that:
“If this court were to permit an injunction permanently preventing the publication of speech in this instance, such a precedent could be used to permanently enjoin the press from publishing information from a source on the basis of the source’s agreements with other entities. The court below indicated the injunction was not a blanket prohibition on producing a film on a particular subject, but it effectively does serve as such when a contractually limited source is involved at any step of the process.”
The Hollywood Reporter captured these First Amendment concerns, citing an example in its story, with critics asking, “Might Harvey Weinstein have been able to stop the New York Times exposé about his sexual misconduct based on the confidentiality obligations of some of his female accusers? Can ‘hush agreements’ stand in the way of a free press?”
Federal appellate judges recently reversed the order barring Cleopatra from filming and releasing the rocker biopic, concluding the injunction was unenforceable because the film maker was not a party to the ‘87 Lynyrd Skynyrd agreement and could not be bound by it. Even if Cleopatra acted “in concert or participation” with Pyle, the language of the agreement permits Pyle to make a movie describing his experiences, so long as the film’s chief purpose is not to depict the whole group’s history as a band.
The appellate judges minimized the significance of First Amendment prior-restraint concerns by noting this case did not involve any official or government action to constrain news reporting. Cleopatra is a private, non-government party, and the case involved an attempt to enforce a legacy accord. The judges acknowledged, still, that the case “implicates free speech concerns,” and they emphasized that “courts should always be hesitant to approve such an injunction” because “any prior restraint on expression comes to [the Supreme] Court with a heavy presumption against constitutional validity.”
The appellate judges looked back, instead, to the ’87 agreement, its adoption as a court order, and Sweet’s injunction. They found issues in their construction, with U.S. Circuit Judge Jon O. Newman writing for the panel that the “ultimate and dispositive” matter to be decided on appeal was that the earlier orders were “inconsistent, or at least insufficiently specific, and hence unenforceable because they permit what they also appear to prohibit. Pyle is permitted to make a movie that describes his experiences with Lynyrd Skynyrd and to refer to the band, but he may not make a movie that is a history of the band.”
To underscore this point, U.S. Circuit Judge Peter W. Hall, in a concurring appellate opinion, scrutinized an analysis of the Cleopatra script, finding that it showed how Street Survivor zeroes in and stays on Pyle and not the band as a whole. His story occupies 98 pages of the script, while the other six pages are devoted to the band and crash.
While First Amendment advocates and Hollywood may have wanted a more ringing win in their arguments in this case, for Cleopatra, at least, is finally “as free as a bird to make and distribute its work.”