Jefferson Starship MTD

Case 3:17-cv-02423-MEJ Document 14 Filed 07/07/17 Page 1 of 15
1 LEAVENS, STRAND & GLOVER, LLC

TRAVIS W. LIFE (SBN 236033)
2
tlife@lsglegal.com
3 203 North LaSalle Street, Suite 2550
Chicago, Illinois, 60601
4 Telephone: 312.488.4170
Facsimile: 312.488.4177
5
6 UNITED STATES DISTRICT COURT
7 NORTHERN DISTRICT OF CALIFORNIA

8 CRAIG CHAQUICO, Case No.: 3:17 CV 02423 MEJ
9
Plaintiff,
10 MOTION TO DISMISS
vs.
11
DAVID FREIBERG, an Individual; DONNY
12
BALDWIN, an Individual; CHRIS SMITH, an
13 Individual; JUDE GOLD, an Individual;
CATHERINE RICHARDSON, an Individual;
14 and DOES 1 to 20,
15 Defendants.
16
17
TO PLAINTIFF AND HIS ATTORNEYS OF RECORD:
18
PLEASE TAKE NOTICE that on August 17, 2017, at 10:00am or as soon thereafter as
19
the matter may be heard before the Honorable Maria-Elena James in Courtroom B, 15th Floor of
20
the United States District Court for the Northern District of California, located at the Phillip
21
Burton Federal Building, 450 Golden Gate Avenue, San Francisco, California, defendants David
22
Freiberg (Freiberg), Donny Baldwin (Baldwin), Chris Smith (Smith), Jude Gold (Gold),
23
and Catherine Richardson (Richardson) (collectively Defendants) will and hereby do move
24
this Court to pursuant to Federal Rule of Civil Procedure 12(b)(6) for an order dismissing
25
Plaintiffs First Amended Complaint .
26
27
Plaintiff Craig Chaquicos claims arise from the use the name of a musical group,
28 Jefferson Starship, and the use of certain historical images related to the group. Plaintiff alleges
MOTION TO DISMISS - 1
1
that the use of Jefferson Starship by Defendants Baldwin and Freiberg is a breach of contract
2
with Plaintiff (First Cause of Action) and that Defendants used his likeness in connection with
3
their performances and such use violates the Lanham Act (Second Cause of Action). The
4
Complaint fails to state a cause of action for the following reasons:
5
1. Plaintiffs First Cause of Action for breach of contract fails because the action is
6
time barred by the statute of limitations under Cal. Civ. Proc. Code 337
7
2. Plaintiffs Second Cause of Action for violation of the Lanham Act, 15 U.S.C.
8
9
1125(a) (false endorsement) fails because Jefferson Starships historical images are protected
10 under the First Amendment and inclusion of Plaintiffs likeness in historical and truthful images
11 is artistically relevant to Jefferson Starship and does not mislead consumers as to Chaquicos
12 involvement in the current incarnation of Jefferson Starship.
13 This Motion is based on this Notice; on the attached Memorandum of Points and
14 Authorities; on any other matters of which this Court may take judicial notice; on all pleadings,
15 files, and records in this action; and on such arguments as may be received by this Court at the
16 hearing on this Motion.
17 This Motion is made following the conference of counsel, which took place on June 19,
18 2017.
19
20 DATED: July 7, 2017 LEAVENS, STRAND & GLOVER, LLC

TRAVIS W. LIFE
21
22 By:_/s/Travis W. Life______
Travis W. Life
23
Attorneys for Defendants
24 David Freiberg, Donny Baldwin,
Chris Smith, Jude Gold, and
25 Catherine Richardson
26
27
28
1
TABLE OF CONTENTS
2
I. STATEMENT OF ISSUES ..6
3
II. STATEMENT OF FACTS ...7
4
III. ARGUMENT 9
5
A. Plaintiffs Claims Are Subject To A Rule 12(b)(6) Motion To Dismiss ..9
6
B. Plaintiffs Breach of Contract Claim Is Barred By Statute of Limitations .10
7
C. Plaintiffs Lanham Act Claim .11
8
9
1. Jefferson Starships Music, Band Images, and Album Covers Are
10 Expressive Works Protected by the First Amendment ...11
11 2. Historic Images of Jefferson Starship Have Artistic Relevance
12 to the Band Jefferson Starship ....12
13 3. Historic Images of Jefferson Starship Do Not Mislead
14 as to the Source of the Band Jefferson Starship ..13

15 IV. CONCLUSION ...15
16
17
18
19
20
21
22
23
24
25
26
27
28
1
TABLE OF AUTHORITIES
2 CASES
3 Aryeh v. Canon Bus. Solutions, Inc.
55 Cal. 4th 1185, 151 Cal. Rptr. 3d 827, 292 P.3d 871 (2013) ....10
4
Ashcroft v. Iqbal
5 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) ....9
6
Baugh v. CBS, Inc.
7
828 F. Supp. 745 (N.D. Cal. 1993) ...9
8 Bell Atl. Corp. v. Twombly

550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) ....9
9
Brown v. Elec. Arts, Inc.
10 724 F.3d 1235 (9th Cir. 2013) .........11, 12, 13, 14, 15
11 Cinevision Corp. v. Burbank

745 F.2d 560 (9th Cir. 1984) .11, 12
12
Daly v. Viacom, Inc.
13 238 F. Supp. 2d 1118 (N.D. Cal. 2002) ..12
14 E.S.S. Entertainment 2000, Inc. v. Rock Star Videos, Inc.
547 F.3d 1095 (9th Cir. 2008) .....13
15
In re Gilead Scis. Sec. Litig.
16 536 F.3d 1049 (9th Cir. 2008) 9
17 Mattel v. MCA Records
296 F.3d 894 (9th Cir. 2002) ........7, 11, 12, 13
18
19
Mortkowitz v. Texaco, Inc.
842 F. Supp. 1232 (N.D. Cal. 1994) ...10
20
Navarro v. Block
21 250 F.3d 729 (9th Cir. 2001) .9
22 Rogers v. Grimaldi
875 F.2d 994 (2d Cir. 1989) ..7, 11, 12, 13, 14
23
Utterkar v. Ebix, Inc.
24 2014 U.S. Dist. LEXIS 142773 (N.D. Cal. 2014) ...10
25 Winter v. DC Comics
30 Cal. 4th 881 (2003) ..10
26
STATUTES
27
California Civil Code 337(1) .6, 10, 11
28
1 Lanham Act 15. U.S. Code 1125(a) (Section 43(a)) ....6, 11

2 RULES
3 Federal Rule of Civil Procedure 12(b)(6) .9
4 Federal Rule of Civil Procedure 15 ......6
5
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1
I. STATEMENT OF ISSUES
2
The First Amended Complaint (Compl.) consists of breach of contract regarding the
3
use of the band name Jefferson Starship and Lanham Act claims (false endorsement) for the use
4
of Plaintiffs likeness with other band members in historical photos of the band Jefferson
5
Starship.1
6
The First Cause of Action for breach of contract is barred by the California Statute of
7
Limitations. Plaintiff mistakenly believes that his claim for breach of contract is timely because
8
9
the statute of limitations on this claim against Defendants Freiberg and Baldwin did not start
10 until Paul Kantners death, which terminated Plaintiffs license to Kantner to use the band name
11 Jefferson Starship.
12 However, the alleged breach of the 1985 Agreement occurred when Freiberg and
13 Baldwin started performing as Jefferson Starship, 2005 and 2008 respectively. Therefore, the
14 four year California Statute of Limitations for written agreements, Cal. Civ. Proc. 337(1),
15 expired in 2009 for Freiberg and 2012 for Baldwin. Freiberg and Baldwin openly performed
16 under the name Jefferson Starship for over nine years before Plaintiff filed this lawsuit;
17 therefore, Plaintiff is barred from bringing this untimely suit and the First Amended Complaint
18 must be dismissed.
19 Plaintiffs Second Cause of Action alleges that Defendants use of historical photographs
20
and images of Jefferson Starship, including photographs and images when Plaintiff was in the
21
band, violates Section 43 of the Lanham Act. Plaintiff further insists that he has absolute control
22
over the use of all historical images of Jefferson Starship because these images include Plaintiffs
23
likeness, despite Defendants First Amendment rights. Defendants submit that because
24
Plaintiffs likeness relates to an expressive work, namely historical images of the band Jefferson
25
26
27
Plaintiffs original complaint included claims for right of publicity, however Plaintiff filed his
1
28 First Amended Complaint, which Defendants consented to post-filing pursuant to Rule 15.
1
Starship, the Court must examine Plaintiffs Lanham Act claim for false endorsement pursuant
2
the Rogers test. Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989) (Rogers). Under Rogers,
3
the First Amendment bars such claims unless the use of the plaintiffs name or likeness is
4
wholly unrelated to the defendants work or is simply a disguised commercial advertisement
5
for the sale of [unrelated] goods or services. 875 F.2d at 1004. The Ninth Circuit already has
6
agree[d] with the Second Circuits analysis and adopt[ed] the substantially similar test from
7
Rogers for deciding whether the First Amendment protects expressive works against Lanham
8
9
Act claims. Mattel v. MCA Records, 296 F.3d 894, 902 (9th Cir. 2002) (Mattel). Defendants
10 submit that by applying the Rogers right of publicity test here, it is clear that Defendants use of
11 Plaintiffs likeness is not wholly unrelated to the content of the work about Jefferson Starship.
12 Nor could Defendants use of historical photos and album covers be characterized as a
13 disguised advertisement for the sale of unrelated goods. Id. Thus, the Rogers test bars
14 Plaintiffs Lanham Act claim.

15 II. STATEMENT OF FACTS
16 The musical group Jefferson Starship arose from the disbanded musical group Jefferson
17 Airplane in 1974. Compl. 15. The original Jefferson Starship included Paul Kantner,
18 Defendant David Freiberg, Grace Slick, John Barbata, Papa John Creach, who were former
19 members of Jefferson Airplane and new Jefferson Starship members Peter Kaukonen and
20
Plaintiff Craig Chaquico. Id. After several tours and albums Mickey Thomas joined the band in
21
1979 as lead singer and in 1982 Defendant Donny Baldwin joined as the bands drummer. Id.
22
From the bands formation in 1974 through 1985, Jefferson Starship released twenty
23
platinum and gold albums. Compl. 16. In 1984, after the release of the Jefferson Starship album
24
Nuclear Furniture, founding member of both the Jefferson Airplane and Jefferson Starship Paul
25
Kantner grew unhappy and decided to leave the band. Compl. 17. At that time Kantner
26
initiated legal action in an attempt to prevent the band from continuing to use the Jefferson
27
Starship name. Id. In 1985, the then remaining members of Jefferson Starship including Plaintiff
28
1
and Defendants Freiberg and Baldwin entered into a Settlement Agreement with Kantner (the
2
1985 Agreement). Id.
3
Paragraph 4 of the 1985 Agreement provided that with respect to the trade name
4
Jefferson Starship (hereinafter referred to as The Name) it is agreed between us that The
5
Name shall be retired effectively immediately, with no individual or group, whether or not a
6
party hereto, to be permitted to use the name or any designation substantially similar to the name
7
in any way, including without limitation, in connection with records, concerts and
8
9
merchandising. The 1985 Agreement provided no mechanism for licensing or authorizing
10 anyone, including the parties to the 1985 Agreement, to use The Name. Compl. 18.
11 In 1990, Kantner began touring with various lineups of musicians under the name
12 Jefferson Starship. Compl. 21. Plaintiff sued Kantner for breach of the 1985 Agreement for
13 using The Name (Jefferson Starship). Plaintiff and Kantner entered into a settlement agreement
14 in 1993 (the 1993 Agreement). Id. Pursuant to the 1993 Agreement, Plaintiff gave
15 permission on behalf himself [sic] to Kantner and only Kantner to use the Jefferson Starship
16 name in connection with live performances and merchandise. Id. (Emphasis added)
17 In 2005 Defendant Freiberg rejoined Jefferson Starship and Defendant Baldwin rejoined
18 the band in 2008. Compl. 22. Original band member Defendant Freiberg has continued to
19 perform with the band full time since 2005 and Baldwin has continued to perform with the band
20
full time since 2008. Id.
21
The current band performing and touring as Jefferson Starship also includes defendants
22
Chris Smith, Cathy Richardson, and Jude Gold. Richardson, Gold, and Smith, along with
23
original members Freiberg and Baldwin, provide continuity to the historic Jefferson Starship
24
legacy and continue to perform songs from all eras of Jefferson Starship. Freiberg Decl. 8. The
25
Defendants are identified as the current members of Jefferson Starship on the bands web site
26
and social media. Freiberg Decl. 9. The current band has continued to provide historical
27
context and connection for the rich Jefferson Starship musical and artistic history and continues
28
1
to perform songs from all eras of the Jefferson Starships 40+ year musical history. Freiberg
2
Decl. 8. The telling of that history includes images of historic versions of Jefferson Starship
3
band photos and album art from the 1970s through the current version of the band. Freiberg
4
Decl. 11.
5
III. ARGUMENT
6
A. Plaintiffs Claims Are Subject To A Rule 12(b)(6) Motion To Dismiss
7
Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a
8
9
complaint for failure to state a claim upon which relief can be granted. Such a motion tests the
10 legal sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In
11 considering whether the complaint is sufficient, the Court must accept as true all of the factual
12 allegations contained in the complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937,
13 173 L. Ed. 2d 868 (2009). However, the Court need not accept as true allegations that
14 contradict matters properly subject to judicial notice or by exhibit or allegations that are
15 merely conclusory unwarranted deductions of fact, or unreasonable inferences. In re Gilead
16 Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (citation omitted). While a complaint need
17 not allege detailed factual allegations, it must contain sufficient factual matter, accepted as true,
18 to state a claim to relief that is plausible on its face. Iqbal, 556 U.S. at 678, (quoting Bell Atl.
19 Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). A claim has
20
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
21
reasonable inference that the defendant is liable for the misconduct alleged. The plausibility
22
standard is not akin to a probability requirement, but it ask for more than a sheer possibility that
23
a defendant has acted lawfully. Iqbal, 556 U.S. at 678 (internal citation omitted).
24
Summary disposition is particularly favored in cases, such as this one, involving First
25
Amendment rights. Baugh v. CBS, Inc., 828 F.Supp. 745, 752 (N.D. Cal. 1993) (emphasis
26
added) (dismissing misappropriation claims following defendants motion to dismiss, or for
27
summary judgment, before discovery occurred). The California Supreme Court has emphasized
28
1
that because unnecessarily protracted litigation would have a chilling effect upon the exercise of
2
First Amendment rights, speedy resolution of cases involving free speech is desirable. Winter v.
3
DC Comics, 30 Cal.4th 881, 891 (2003).
4
B. Plaintiffs Breach of Contract Claim Is Barred By Statute of Limitations
5
Under California law, the statute of limitations for breach of a written contract is four
6
years. Cal. Civ. Proc. Code 337(1). The limitations period, the period in which a plaintiff
7
must bring a suit or be barred, runs from the moment a claim accrues. Utterkar v. Ebix, Inc.,
8
9
2014 U.S. Dist. LEXIS 142773, *11 (N.D. Cal. 2014) (quoting Aryeh v. Canon Bus. Solutions,
10 Inc., 55 Cal. 4th 1185, 1191, 151 Cal. Rptr. 3d 827, 292 P.3d 871 (2013)). A breach of contract
11 claim generally accrues at the time of the breach. Id. citing Mortkowitz v. Texaco, Inc., 842 F.
12 Supp. 1232, 1236 (N.D. Cal. 1994) (citations omitted).
13 Here, Plaintiffs breach of contract claims against Defendants Freiberg and Baldwin
14 based on the 1985 Agreement. Compl. 17. The parties to the 1985 Agreement agreed to no
15 longer perform under the name Jefferson Starship. Compl. 18. Plaintiff sued Paul Kantner
16 (Kantner) for breach of the 1985 Agreement for Kantners use of the name Jefferson Starship
17 in 1990. Compl. 21. In 1993, Plaintiff granted permission to Kantner to use the name
18 Jefferson Starship pursuant a settlement agreement (1993 Agreement) between the two former
19 members of the band.2 Id. As noted above, the 1985 Agreement did not include any provision
20
for granting permission by any of the parties to anyone. It did not authorize Plaintiff to grant
21
permission to Kantner to use the Name.
22
Freiberg joined one of Kantners Jefferson Starship lineups in 2005. Compl. 22;
23
Freiberg Decl. 5. Baldwin joined the band in 2008. Compl. 22; Freiberg Decl. 7. From
24
2008 until Kantners death in January 2016, Freiberg and Baldwin were members of Jefferson
25
26
27
2
There is a clear question as to whether Plaintiff had the authority to grant a license for a mark which he
28 did not own, but we will leave that question for another day.
1
Starship. Accordingly, the 1985 Agreement, as alleged by Plaintiff, was breached by Freiberg in
2
2005 and Baldwin in 2008. Therefore, pursuant to Cal. Civ. Proc. 337(1), Plaintiff had to bring
3
his claim for breach of contract against Freiberg by 2009 and against Baldwin by 2012.
4
Plaintiff sat on his rights to sue Freiberg and Baldwin for breach of contract under the
5
1985 Agreement. Freiberg and Baldwin have been performing publicly, as Jefferson Starship,
6
across the United States since 2008. Compl 22; Freiberg Deck. 8-9. Plaintiffs claims
7
against Freiberg and Baldwin for breach of contract is time barred by Cal. Civ. Proc. Code
8
9
337(1). Plaintiffs First Cause of Action, Breach of Contract against Freiberg and Baldwin,
10 should be dismissed.
11 C. Plaintiffs Lanham Act Claim
12 Section 43(a) protects the publics interest in being free from consumer confusion about
13 affiliations and endorsements, but this protection is limited by the First Amendment, particularly
14 if the product involved is an expressive work. Brown v. Elec. Arts, Inc., 724 F.3d 1235, 1239
15 (9th Cir. 2013). Recognizing the need to balance the publics First Amendment interest in free
16 expression against the publics interest in being free from consumer confusion about affiliation
17 and endorsement, the Second Circuit created the Rogers test. Rogers, 875 F.2d 994 (2d Cir.
18 1989). Under the Rogers test, 43(a) will not be applied to expressive works unless the [use of
19 the trademark or other identifying material] has no artistic relevance to the underlying work
20
whatsoever, or, if it has some artistic relevance, unless the [use of trademark or other identifying
21
material] explicitly misleads as to the source or the content of the work. Id at 999.
22
1. Jefferson Starships Music, Band Images, and Album Covers Are
23 Expressive Works Protected by the First Amendment
24 Courts have long held that musical and artistic works were expressive and protected by
25 the First Amendment. Mattel, 28 F. Supp. 2d at 1140 (Courts have noted that songs are
26 undisputedly works of artistic expression deserving of First Amendment protections) (quoting
27
Rogers, 875 F.2d at 997) affirmed 296 F.3d 894 (9th Cir. 2002); Cinevision Corp. v. Burbank,
28
1
745 F.2d 560, 569 (9th Cir. 1984) (We hold that live musical expression is protected by the first
2
amendment.). Perhaps the Cinevision Court stated it the best, In any event, constitutional
3
safeguards are not applicable to only musical expression that implicates some sort of ideological
4
content. Rather, all political and non-political musical expression, like other forms of
5
entertainment, is a matter of first amendment concern. Cinevision, 745 F.2d at 569. In fact, the
6
Ninth Circuit extended First Amendment protection beyond just the musical expression and
7
included promotional work for musical expressions. Id; Daly v. Viacom, Inc., 238 F. Supp. 2d
8
9
1118 (N.D. Cal. 2002) (plaintiff did not state right of publicity claim based on defendants use of
10 her image in the program Bands on the Run or in billboards and other promotional material
11 because the entertainment program and the advertisements for the program were protected by
12 the First Amendment)
13 The work of Jefferson Starship is no different. With music, images, and albums that span
14 over forty years (Compl. 15), with platinum and gold albums (Compl. 16.), the band,
15 Jefferson Starship, is more than deserving of the First Amendment protections. Jefferson Starship
16 continues to perform live its artistic expressions to this day. Compl. 23-26. The images and
17 album covers are an extension of the artistic expression of the band. These images and album
18 covers, as seen throughout the years, possess the same First Amendment protections as the
19 musical work itself. Daly v. Viacom, Inc., 238 F. Supp. 2d 1118 (N.D. Cal. 2002). The use of
20
historical images and album covers are expressive and protected under the First Amendment,
21
thus the Rogers test must be applied to determine if Plaintiffs Lanham Act claim can stand.
22
2. Historic Images of Jefferson Starship Has Artistic Relevance to the
23 Band Jefferson Starship.
24 The Rogers test is reserved for expressive works. Brown, 724 F.3d at 1241. Under the
25 Rogers test 43(a) will not be applied to expressive works unless the [use of the trademark or
26 other identifying material] has no artistic relevance to the underlying work whatsoever, or, if it
27 has some artistic relevance, unless the [use of trademark or other identifying material] explicitly
28 misleads as to the source or the content of the work. Rogers, 875 F.2d at 999. The level of
1
[artistic] relevance [of the trademark or other identifying material to the work] merely must be
2
above zero for the trademark or other identifying material to be deemed artistically relevant.
3
E.S.S. Entertainment 2000, Inc. v. Rock Star Videos, Inc., 547 F.3d 1095, 1100(9th Cir. 2008)
4
(emphasis added). This black-and-white rule has the benefit of limiting [the courts] need to
5
engage in artistic analysis in this context. Brown, 724 F.3d at 1243.
6
Brown is directly on point. In Brown, celebrated football star Jim Brown sued Electronic
7
Arts, Inc. under the Lanham Act 43(a) for the use of his likeness in the video game Madden
8
9
NFL. Brown, 724 F.3d at 1239-1240. The Ninth Circuit affirmed the dismissal of Browns
10 Lanham Act claim pursuant to Rule 12(b)(6) based on the Rogers test. Id. at 1248. The Court
11 agreed that Browns likeness in a video game had artistic relevance to the expressive work of
12 video games. Id. at 1243. Browns likeness was artistically relevant to creating the realism of
13 the historic teams for the game. Id.
14 Here, Plaintiffs likeness is included with other members of Jefferson Starship in historic
15 images and album covers documenting the history of the iconic band. Use of these images are
16 for historical reference. Decl. Freiberg 12. Plaintiffs likeness is absolutely relevant to the
17 expressive work of Jefferson Starship and to claim otherwise would be to erase history and place
18 limitations on expressive works. Plaintiffs Lanham Act claim fails under the Rogers test as
19 Plaintiffs likeness is artistically relevant to the history of the band Jefferson Starship.
20
3. Historic Images of Jefferson Starship Do Not Mislead as to the Source
21 of the Band Jefferson Starship
22 The second prong of the Rogers test points directly at the purpose of trademark law,
23 namely to avoid confusion in the marketplace by allowing a trademark owner to prevent other
24 from duping consumers into buying a product they mistakenly believe is sponsored by the
25 trademark owner. E.S.S., 547 F.3d at 1100 (internal quotation marks and citation omitted).
26 Even if the use of the trademark or other identifying material is relevant to the expressive work,
27
the creator of the expressive work can be subject to a Lanham Act claim if the creator uses the
28
1
mark or material to explicitly mislead[ ] [consumers] as to the source or the content of the
2
work Brown, 724 F.3d at 1245 (quoting Rogers, 875 F.2d at 999) (emphasis added). It is key
3
that the creator must explicitly mislead consumers. [T]he slight risk that use of a celebritys
4
name might implicitly suggest endorsement or sponsorship to some people is outweighed by the
5
danger of restricting artistic expression, and [in cases where there is no explicit misleading] the
6
Lanham Act is not applicable. Id. (quoting Rogers, 875 F.2d at 999-1000) (emphasis added).
7
Using the mark alone is not enough to satisfy this prong of the Rogers test. Id.
8
9
Again Brown is on point. Brown argued that defendants attempted to explicitly mislead
10 consumers by using his image in the video game, surveying consumers as to confusion,
11 providing the written materials which accompanied the video game, changing Browns likeness
12 in the game itself, and providing comments by defendants at a conference. Brown, 724 F.3d at
13 1245-1247. The Ninth Circuit shot down each of Browns arguments that defendants explicitly
14 mislead consumers. The Court held that the survey evidence did not outweigh the publics
15 interest in the artistic expression of the work. Id. at1246. The written materials were at least
16 the right kind of evidence however, the mere statement that Brown was included in the video
17 game was not sufficient to demonstrate defendants explicitly misled consumers about Browns
18 endorsement of the game. Id (emphasis added). The changes in Browns likeness in the game
19 actually worked against the impression of endorsement, rather than explicitly expressing it. Id.
20
Defendants comments were not to the games consumers and never explicitly misled as to
21
Browns endorsement of the game. Id. at 1247.
22
Here, Plaintiff did not, and cannot, plead that Defendants explicitly mislead consumers as
23
to the source of Jefferson Starship. Defendants names are clearly listed as the current band
24
members on their web page and social media pages. Freiberg Decl. 9. Defendants have never
25
claimed that Plaintiff is a member of the current band nor have they claimed that he has been in
26
the band at any point since 1990. Freiberg Decl. 10. Use of Plaintiffs likeness on historic
27
band photos and album covers alone is not sufficient to satisfy this prong of the Rogers test.
28
1
IV. CONCLUSION
2
Plaintiffs claims against Freiberg and Baldwin are clearly time barred by California
3
statute. Likewise, Plaintiffs attempt to curb an expressive work clearly violates the First
4
Amendment. The use of Plaintiffs likeness is directly relevant to the artistic work and history of
5
the band Jefferson Starship. This attempt to limit free expression disregards a long line of
6
authorities holding that the First Amendment protects such uses in a variety of media. Because
7
Plaintiff cannot establish any possibility of prevailing on his breach of contract and Lanham Act
8
9
claims law, the Court should grant Defendants motion and dismiss the First Amended
10 Complaint.
11
DATED: July 7, 2017 LEAVENS, STRAND & GLOVER, LLC
12 TRAVIS W. LIFE
13
By:_/s/Travis W. Life______
14 Travis W. Life
15 Attorneys for Defendants
David Freiberg, Donny Baldwin,
16 Chris Smith, Jude Gold, and
Catherine Richardson
17
18
19
20
21
22
23
24
25
26
27
28

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Case 3:17-cv-02423-MEJ Document 14 Filed 07/07/17 Page 1 of 15

1 LEAVENS, STRAND & GLOVER, LLC

6 UNITED STATES DISTRICT COURT

7 NORTHERN DISTRICT OF CALIFORNIA

12 involvement in the current incarnation of Jefferson Starship.

20 DATED: July 7, 2017 LEAVENS, STRAND & GLOVER, LLC

10 Expressive Works Protected by the First Amendment ...11

11 2. Historic Images of Jefferson Starship Have Artistic Relevance

12 to the Band Jefferson Starship ....12

13 3. Historic Images of Jefferson Starship Do Not Mislead

14 as to the Source of the Band Jefferson Starship ..13

8 Bell Atl. Corp. v. Twombly

11 Cinevision Corp. v. Burbank

1 Lanham Act 15. U.S. Code 1125(a) (Section 43(a)) ....6, 11

14 Plaintiffs Lanham Act claim.

12 Supp. 1232, 1236 (N.D. Cal. 1994) (citations omitted).

11 C. Plaintiffs Lanham Act Claim

12 the First Amendment)

13 the historic teams for the game. Id.

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