In their 1967 hit “Soul Man,” Sam Moore and Dave Prater claimed not only that they were soul men, but that we could be, too, singing, “I’m a soul man. You’re a soul man.”FN1
Yet, a recent case in the Sixth Circuit almost proved otherwise. Moore sued Weinstein Company, the parent of film distributor Dimension Films, for the company’s production of the movie “Soul Men,” alleging trademark infringement and misappropriation. The singer claimed that the movie was roughly based on his personal and professional life with Prater.FN2
“Soul Men,” starring Bernie Mac and Samuel L. Jackson, depicted the fictional story of two-thirds of a singing trio called “Marcus Hooks and the Real Deal.” After a band breakup and the death of lead singer Marcus, Louis Hinds (Jackson) and Floyd Henderson (Mac) embark on a cross-country trip from LA to New York after twenty years of not speaking to each other to sing at a tribute concert for their late band member. Along the way, the singers stop at various bars to practice songs together, including “Hold On, I’m Comin,’” another Sam & Dave hit.FN3
In nonfiction, Sam and Dave were part of a duo who had their own personal struggles and periods of not speaking. The duo broke up in the early seventies, but reunited in the eighties before the death of Prater in 1988.FN4
Do these two stories sound familiar to you? They didn’t to the Sixth Circuit, who affirmed the United States District Court’s grant of summary judgment in favor of the motion picture company. Focusing mainly on the singer’s right to publicity, the Sixth Circuit embarked on a familiar battle of the First Amendment versus a plaintiff’s intellectual property rights, ultimately resulting in a First Amendment victory.FN5
The battle boiled down to a question of transformation. The Court followed the transformative elements test set forth in Comedy III Productions Inc. v. Gary Saderup, Inc., “weigh[ing] the appropriated likeness against the appropriating work’s expressiveness.”FN6 Basically, the court assessed whether any similar qualities between “Soul Men” and Moore’s life had been so transformed that the product became more an expression of the creator and less a mirror image of the celebrity’s life. The Court ultimately ruled that “Soul Men” was beyond publicity’s reach.
But, let’s weigh the interests here. On the one hand, we have a singer fighting for his right to protect the use of his image or likeness for commercial gain. He used his talent to achieve a celebrity status, or, using the lyrics of his own song, he “got what [he] got the hard way.”FN7 Now, we have a film distributor creating a movie that presents similar ties to the singer’s life, yet adds a few twists and turns that make the movie just transformative enough that protection of creativity rules. Were those twists and turns enough? Are such facts that no Sam & Dave songs appear on the movie soundtrack, that the writers added the flair of comedy to the script, or that they developed each character individually with lives that don’t completely resemble the lives of Sam and Dave enough that we can confidently say that this likeness was transformed? I think the Sixth Circuit hit the nail on the head with this decision. This is transformation.
In the interest of intellectual property goals, let’s ask what the repercussions of this decision are. Are we stifling the incentive of others to use their talents in a way that makes them famous? Not really. Is the movie simply usurping Moore’s life to gain financially? Not really. No, the Court is protecting something that arguably could be the ultimate goal of intellectual property as well as the First Amendment—creativity. The Court is encouraging writers and creators to pour out their own soul, all while cautioning that if there is not some artistic transformation in their work, they will be penalized for reaping where they have not sown. For all the writers, producers, directors, and even movie lovers out there, this Sixth Circuit decision should be music to our ears.
FN1. SAM & DAVE, SOUL MAN (Stax/Atlantic 1967).
FN2. Moore v. Weinstein Co., LLC, No. 12-5715, 2013 WL 5832375 (6th Cir. Oct. 31, 2013).
FN3. Id. at *2; Soul Men, IMDB, http://www.imdb.com/title/tt1111948/ (last visited Jan. 4, 2014).
FN4. Moore, at *2; 1937-Dave Prater (Sam and Dave) Is Born, THIS DAY IN ROCK, http://www.thisdayinrock.com/index.php/general/1937-dave-prater-sam-and-dave-is-born/ (last visited Jan. 4, 2014).
FN5. Moore, at *2.
FN6. Comedy III Prods., Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387 (2001).
FN7. SAM & DAVE, supra note i.