Warren Miller in new movie. And they get SUED!?

[Hawkshot99]

Well I took too long to post my reply.

I agree with tcharron.

 

[mondeo]

Incidentally, my background comes from a few classes (~30 minutes each) I've had to take covering IP law for work. Using Miller as a vocal talent is something I'd definitely pass by legal in this case. Heck, I'm scared to use knowledge gained from one product sold as a joint venture in developing other products that are produced solely by my company. Don't get me started about talking to furiners.

 

[Tin Woodsman]

No, Warren just can't lend his vocal talents to ski porn. Ski documentary (a la Steep, discussing the history of ski film making or something,) would probably be ok. But not ski porn. But Level 1 is using Miller's voice to connect their film to the history of WME, and derive profit from WME's previous films to the detriment of WME. That's where the trademark comes in. "In the United States, the test for whether a sound can serve as a trademark 'depends on [the] aural perception of the listener which may be as fleeting as the sound itself unless, of course, the sound is so inherently different or distinctive that it attaches to the subliminal mind of the listener to be awakened when heard and to be associated with the source or event with which it struck'." Also, "It should be noted that trademark rights generally arise out of the use or to maintain exclusive rights over that sign in relation to certain products or services." In my book, Miller's voice when applied to ski porn passes these tests.

Trying to stop Miller from using his voice in ski porn seems pretty close to an unreasonable restraint on trade to me. IOW, it's akin to a non-compete which the courts generally frown upon if they go beyond a 3-4 year period. In California they are banned outright. While I could see WME's point if Level 1 was using Miller's voice and image to promote their film, that doesn't seem to be the case here.

 

[riverc0il]

Mondeo has some very good points here. I have no legal background so I will refrain from commenting too much here. But the little I do know about copyright infringement leads me to believe that if Warren Miller did certain things in violation of the terms of the sale of his company to WME, then the law suit is valid in a court of law.

My original post stands though and I am not backing off the big thumbs down. As Mondeo suggested, regardless of legality and soundness of the law suit this is REALLY bad PR.

 

[tcharron]

No, Warren just can't lend his vocal talents to ski porn. Ski documentary (a la Steep, discussing the history of ski film making or something,) would probably be ok. But not ski porn. But Level 1 is using Miller's voice to connect their film to the history of WME, and derive profit from WME's previous films to the detriment of WME. That's where the trademark comes in. "In the United States, the test for whether a sound can serve as a trademark 'depends on [the] aural perception of the listener which may be as fleeting as the sound itself unless, of course, the sound is so inherently different or distinctive that it attaches to the subliminal mind of the listener to be awakened when heard and to be associated with the source or event with which it struck'." Also, "It should be noted that trademark rights generally arise out of the use or to maintain exclusive rights over that sign in relation to certain products or services." In my book, Miller's voice when applied to ski porn passes these tests.

But Warren even speaking could potentially dilute the value of the trademark. But I suppose it's one of those arguments that ends up just being stupid. In the end, they had a non-compete agreement which expired. It is an interesting view to use the argument of sound, but the sound they are referring to isn't a distrinct individual sound. It's his voice. Also attached to it is the idea of the history of WME. Did Warren for one second say, "Back in the day when I was owner of WME'. Warrens personal experiences, and his intrepetations of his own memories, can't be trademarked. As an example, I am personally a Engineering Technologist specializing in software control systems. I can sign away anything I like as far as non competes, or agreements not to disclose. However, if I learned to use a Mac in the process of a particular job, they cannot turn around and forbid me from using a Mac, or even better, retelling how I learned to use a Mac.

I haven't seen the film. But does Warren ever even mention Warren Miller Entertainment? The contract owns everything 'Warren Miller Entertainment'. All the tapes, all the recordings, it's all theirs, and they can do anything they want with it. And Warren Miller can't say anything about WME, as they'd own that to. But if he is recounting his own recollections. Well, even if that was the intent of the agreement, I suspect that Warrens personal rights will win over any legal agreement with WME. Corperate speech has always had less power then individual speech.

 

[tcharron]

Mondeo has some very good points here. I have no legal background so I will refrain from commenting too much here. But the little I do know about copyright infringement leads me to believe that if Warren Miller did certain things in violation of the terms of the sale of his company to WME, then the law suit is valid in a court of law.

My original post stands though and I am not backing off the big thumbs down. As Mondeo suggested, regardless of legality and soundness of the law suit this is REALLY bad PR.

If Warren Miller violated the terms, then they would need to be going after him as well, or risk appearing to be selective in their targets, which could be considered willingly diluting their trademark.

 

[ta&idaho]

WME's claim is unlikely to be successful, as illustrated by the fact that its application for a temporary restraining order was denied (the standard for granting such emergency relief is rather low -- a likelihood of success on the merits). Warren Miller (the individual) would have a trademark claim for false endorsement if Level One had used his voice in their film without his authorization in a way that might be construed as his endorsement of their film. This is not the case (Warren Miller agreed to participate in the film), and the right to control how one's voice and likeness are employed is personal and cannot be assigned to another entity. Although Warren Miller sold a significant portfolio of intellectual property rights to the current owners of WME, this cannot have included the right to future recordings of his voice. WME would have a copyright claim against Level One if they had used clips of his voice from past films, but WME does not have a trademark claim based on any apparent endorsement of the Level One film. WME might also have a contract claim against WME based on a non-compete clause they negotiated when they purchased the film franchise, but it sounds like that provision has expired, and it is unlikely that WME could use the terms of that contract to prevent Level One (not a party to that contract) from airing footage of Warren Miller.

I grew up loving Warren Miller films, but this litigation has soured me on their current incarnation (WME). I'll stick to other companies (and, more importantly, youtube/vimeo footage on this and other websites) in the future.

 

[Tin Woodsman]

WME's claim is unlikely to be successful, as illustrated by the fact that its application for a temporary restraining order was denied (the standard for granting such emergency relief is rather low -- a likelihood of success on the merits). Warren Miller (the individual) would have a trademark claim for false endorsement if Level One had used his voice in their film without his authorization in a way that might be construed as his endorsement of their film. This is not the case (Warren Miller agreed to participate in the film), and the right to control how one's voice and likeness are employed is personal and cannot be assigned to another entity. Although Warren Miller sold a significant portfolio of intellectual property rights to the current owners of WME, this cannot have included the right to future recordings of his voice. WME would have a copyright claim against Level One if they had used clips of his voice from past films, but WME does not have a trademark claim based on any apparent endorsement of the Level One film. WME might also have a contract claim against WME based on a non-compete clause they negotiated when they purchased the film franchise, but it sounds like that provision has expired, and it is unlikely that WME could use the terms of that contract to prevent Level One (not a party to that contract) from airing footage of Warren Miller.

I grew up loving Warren Miller films, but this litigation has soured me on their current incarnation (WME). I'll stick to other companies (and, more importantly, youtube/vimeo footage on this and other websites) in the future.

It should also be noted that my bried reading of the contract language that's been made public gives WME copyright on WM's voice in all of the work he did with WME back in the day, but it doesn't seem to extend beyond that outside of the now expired non-compete. IOW, someone can't use Warren's audio from those movies, or a clip, w/o permission from WME. That doesn't mean he can't narrate or participate in a ski film for the rest of his life.

 

[tcharron]

It should also be noted that my bried reading of the contract language that's been made public gives WME copyright on WM's voice in all of the work he did with WME back in the day, but it doesn't seem to extend beyond that outside of the now expired non-compete. IOW, someone can't use Warren's audio from those movies, or a clip, w/o permission from WME. That doesn't mean he can't narrate or participate in a ski film for the rest of his life.

I think what's at issue is saying "Warren Miller", to WME anyway, is synonymous with saying 'Warren Miller Entertainment'.

I'm not saying it's right. What will utterly suck for them is, if the judge says Warren can do whatever he likes, I suspect we'll see more of him in the future, which I will like at least. :-D

 

[tcharron]

WME puts the case on hold to go into arbitration with Warren. God, I hope he doesn't sign anything insane like his last agreement that caused this whole ruckuss.

http://warrenmillerentertainment.wordpress.com/2009/10/04/wme-statement-regarding-legal-dispute/