This guest post was written by Sylvanna Le, a 2L enrolled in Southwestern Law School’s Entertainment Law and Web 2.0 course:
She’s a papal headline performer and has been crowned by critics as the Queen of Soul. But did a federal judge in Colorado accord singer Aretha Franklin excessive r-e-s-p-e-c-t when he recently issued a court order blocking a noted film festival from screening a documentary about the Motown legend? Yes, the judge also enjoined the producer of the work, who has been in long running and unsuccessful negotiations with Franklin for permission to use her name and likeness.
Now, however, concerns have been expressed that this dispute, which since has affected film festivals in Telluride, Colo., andToronto, and a potential showing in Los Angeles, has transformed into a potentially precedent-setting, First Amendment issue of prior restraint. It could pose a potential significant problem for those who screen movies at events and else wise. Although the parties have tried to step back from the legal cliff, it’s worth a deeper dive into this dispute.
The background to the legal battle goes like this: Allan Elliot is a former music producer and UCLA professor who came into possession of the film seven years ago at the deathbed of its original director, the formidable Sydney Pollack. Pollack, an Oscar-winner who directed and produced more than 40 films, had shot Franklin giving an “unfiltered” performance in a church in South Central Los Angeles and created a work he called Amazing Grace. It never advanced due to technical woes on synching sound and images.
40 years in the vault
Before Elliott obtained the footage and was asked to finish the project, the work had sat in Warner Brothers’ vault for more than 40 years. Warner contended that Franklin held rights to the material but later found personal-service contracts that said otherwise. The studio allowed Elliot access to it and he advanced the project. In her complaint, however, Franklin asserts Elliot needed her permission for the film, as they had agreed in 2011, when they settled a suit in which the diva had sought to stop him from making the film. Franklin has never said she hates the movie nor explained her objections to it.
The court order barring its screening at the Telluride Film Festival, as The Hollywood Reporter‘s Eriq Gardner has noted, raises issues as to court’s meager analysis and explanation as to whether the film’s use of footage of Franklin is protected the First Amendment, and especially whether the screener or performer of the work properly may be barred beforehand from public performance. Further, the senior editor said, though it is right to be respectful of the bench, the judge in this instance gives Franklin an unquestioned and blanket approval as to her claims of copyright infringement and violation of publicity rights, though a stated goal of copyright is to “foster creativity and freedom of expression.”