Date: 10-23-2018

Case Style:

Case Number: 17-2849-cv

Judge: Per Curiam

Court: United States Court of Appeals for the Second Circuit

Plaintiff's Attorney: Richard G. Haddad, Sandor Frankel, Pauline McTernan for Plaintiff

Defendant's Attorney: Evan M. Mandel and Rishi Bhandari for Defendants.

Nathan Siegel and L. Danielle Toaltoan in support of Defendants.

Bruce D. Brown, Gregg P. Leslie and Caitlin Vogus for amici curiae The Reporters Committee for Freedom of the Press

Description: This appeal presents the issue of whether the release of a movie will violate
the provisions of a consent order that settled a lawsuit between private parties.
This issue arises on an appeal by Defendants‐Appellants Cleopatra Records, Inc.
and Cleopatra Films (together, “Cleopatra”) from the September 13, 2017,
4
judgment and permanent injunction of the District Court for the Southern District
of New York (Robert W. Sweet, District Judge). See Van Zant, Inc. v. Pyle, 270 F.
Supp. 3d 656 (S.D.N.Y. 2017). The consent order settled a suit brought in 1988 by
Judith Van Zant Jenness (“Judith”), then known as Judith Van Zant Grondin,
against past and then present members of the rock band known as Lynyrd
Skynyrd. See Grondin v. Rossington, 690 F. Supp. 200 (S.D.N.Y. 1988). The 1988 suit
sought to clarify each party’s rights with respect to use of the name “Lynyrd
Skynyrd” and their rights, among other things, to make films about the band and
their own lives.
We conclude that the terms of the Consent Order are inconsistent, or at least
insufficiently precise, to support an injunction, and we therefore reverse the
judgment of the District Court and vacate the injunction.
Background
The Lynyrd Skynyrd band. Lynyrd Skynyrd was a rock band founded in the
1960s by Ronnie Van Zant (“Ronnie”), Gary R. Rossington, and Allen Collins. “The
name Lynyrd Skynyrd was chosen as a spoof on the name of their high school gym
teacher and is pronounced [as if it were spelled] Leonard Skinnerd.” Grondin v.
Rossington, 690 F. Supp. 200, 202 (S.D.N.Y. 1988). Artimus Pyle, an individual
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critical to the issues in the pending appeal, joined the band as a drummer in 1975.
Ronnie led the band, was lead singer, and wrote 50 percent of the songs. On
October 20, 1977, an airplane carrying the band members crashed in Mississippi.
Ronnie, Steven Gaines, Gaines’ sister, and several others died. Pyle, Rossington,
and Collins survived.
After the plane crash, Judith, Ronnie’s widow, Rossington, and Collins
entered into what they called a “blood oath” (the “Oath”), promising “never to use
the name Lynyrd Skynyrd again.” See Grondin, 690 F. Supp. at 202. The Oath was
respected for 10 years.
In 1987, the surviving band members embarked on a tribute tour to Lynyrd
Skynyrd. Judith took issue with their use of the band’s name and sued them in the
Southern District. This was the Grondin case, which ended with the Consent Order
at issue on this appeal.
The Consent Order. The Consent Order restricts how the parties to the
Grondin lawsuit, including Pyle, can use, among other things, the name Lynyrd
Skynyrd, biographical material of Van Zant, and the history of the Lynyrd
Skynyrd band, but permits the parties, among other things, to exploit their life
stories and portray their experiences with the band in movies. We set forth below
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and analyze the key language of the parties’ settlement agreement, which was soordered
by the District Court and became the Consent Order we consider here as
the basis for the District Court’s injunction.
The film. Cleopatra Records, Inc., founded and co‐owned by Brian Perera
(“Perera”), is a Los Angeles‐based independent recording label. Sometime after its
formation, Cleopatra Records entered the film business. In early 2016 Perera
decided to make a film about Lynyrd Skynyrd and the 1977 plane crash (the
“Film”). Ultimately, Pyle signed a contract with Cleopatra Records, Inc., in which
he and Cleopatra Records agreed to the following:
 Pyle would be entitled to 5 percent of the Film’s net receipts;
 The Film would be “based on the story of Lynyrd Skynyrd’s 1977 plane
crash and the events surrounding it” and would be “told through the
recollections and life experiences of” Pyle;
 Pyle would narrate the Film, participate in on‐camera interviews for the
Film’s bonus materials, contribute an original song to the Film’s score, and
have a cameo appearance in the Film; and
 Pyle would receive a “Consultant” or “Co‐Producer” credit in the Film.
Joint App’x 2332‐33.
Plaintiffs’ cease and desist letter. In July 2016, after learning of the Film from
press releases, the Plaintiffs sent a cease and desist letter informing Cleopatra that
it was “not authorized to make a film which either purports to be or is about the
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history of the Band, in whole or in part [and] not authorized to use the name,
likeness, portrait, picture or biographical material of Rossington, Van Zant or
Gaines in any manner.” Joint App’x 2164. The Plaintiffs requested a copy of the
script and said that if it proved to be the life story of Pyle and was “in no way a
history of the Band,” they might reevaluate their position. Id.
Cleopatra responded by requesting a copy of the Consent Order and
asserting that it was not subject to any agreement with Plaintiffs and that it had “a
First Amendment right to produce and distribute a dramatic film depicting,
describing, and/or based upon true, historical events, as it sees fit.” Id. at 2424. In
the month following its response, Cleopatra also inquired of Judith whether she
had any interest in participating in the Film, but that inquiry petered out without
a firm reply.
The Film’s final script. The District Court observed that the “Film’s final script
focuses principally on Pyle, his relationship with the Lynyrd Skynyrd band
members, particularly Van Zant, and events during and immediately following
the 1977 plane crash.” SPA 17. It noted that the script included scenes of the band
performing at a concert, scenes of the band “cavorting,” flashbacks of when Pyle
met and joined the band, and scenes preceding, during, and subsequent to the
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plane crash. Pyle himself described the Film as “a compression of – of our life as a
band.” SPA 17. He also described it as “MY story – [the Film] is not just about the
plane crash but also about my personal relationship with the genius that was
Ronnie Van Zant, whom I loved like a brother and still miss to this day.” Joint
App’x 2341.
Ultimately, the District Court found that the Film is a “film about Lynyrd
Skynyrd,” and based its finding on the following: the script; the factual
information provided by Pyle; the draft titles for the Film that all “evoke[d] the
Lynyrd Skynyrd legacy,” and the Court’s finding that Perera was an unreliable
witness who appeared to be attempting to evade rather than abide by the Consent
Order. Van Zant, 270 F. Supp. 3d at 667.
The Plaintiffs’ lawsuit. In April 2017, the Plaintiffs averred, they learned from
a news article that Cleopatra had gone forward with the Film, titled “Street
Survivors: The True Story of the Lynyrd Skynyrd Plane Crash.”2 Id. Filming had
begun that month, and principal photography was completed in mid‐May 2017.
The Plaintiffs initiated the instant action on May 5, 2017. By that date, Cleopatra
had spent approximately $1.2 million on the Film.
2 “Street Survivors” is the name of a Lynyrd Skynyrd album.
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On August 23, 2017, the District Court ruled that the Plaintiffs were entitled
to a permanent injunction prohibiting distribution of the Film and other related
activities. It reasoned that because (1) Pyle, as a signatory to the Consent Order,
was bound by its restrictions; (2) Cleopatra was likewise bound by the Consent
Order, despite being a non‐signatory, because it had acted “in concert or
participation” with Pyle to produce the Film; and (3) the Film violated the Consent
Order. Van Zant, 270 F. Supp. 3d at 672‐76. The District Court dismissed the
Plaintiffs’ request for a permanent injunction against Pyle individually because he
had no possession of or legal rights to the Film.3 Finally, the District Court found
that the Plaintiffs were entitled to reasonable attorneys’ fees.
The District Court entered the injunction against Cleopatra and others on
September 13, 2017, and awarded judgment to the Plaintiffs against Cleopatra and
Pyle, jointly and severally, for attorneys’ fees and costs in the amount of
$632,110.91 plus any additional fees and costs incurred after July 31, 2017, but not
yet billed.
Discussion
3 By the time of the District Court’s August ruling, Pyle had relinquished his rights
to a percentage of the Film’s revenues.
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The Defendants, Appellants here, supported by several journalism and
entertainment organizations, see this case as a classic First Amendment violation
involving an unlawful prior restraint. It is not. No government entity has obtained
a court order to prevent the making or release of the Film, as occurred in Joseph
Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952), nor does this case involve a claim of
defamation or invasion of privacy as to which the First Amendment imposes
special requirements, see New York Times Co. v. Sullivan, 376 U.S. 254, 279‐80 (1964)
(First Amendment requires actual malice standard to be applied to public official’s
libel claim); Meeropol v. Nizer, 560 F.2d 1061, 1066 (2d Cir. 1977) (First Amendment
requires reckless‐disregard‐of‐truth standard to be applied to public figure’s
invasion of privacy claim). Nevertheless, this case implicates free speech concerns,
and two circumstances counsel caution in permitting an expressive work to be
enjoined, at least outside the context of copyright law where “copyright’s built‐in
free speech safeguards are generally adequate to address” First Amendment
concerns. See Eldred v. Ashcroft, 537 U.S. 186, 221 (2003).
First, even though the injunction here has allegedly been imposed as a result
of private contract rather than government censorship, it nonetheless restrains the
viewing of an expressive work prior to its public availability, and courts should
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always be hesitant to approve such an injunction. “Any prior restraint on
expression comes to [the Supreme] Court with a heavy presumption against its
constitutional validity.” Organization for a Better Austin v. Keefe, 402 U.S. 415, 419
(1971) (internal citations and quotation marks omitted); see Melville Nimmer,
Nimmer on Freedom of Speech § 4.03, p. 4‐14 (1984) (“[P]ermanent injunctions . . .
are classic examples of prior restraints.”).
Second, although parties are free to limit by contract publication rights
otherwise available, see Democratic National Committee v. Republican National
Committee, 673 F.3d 192, 204‐07 (3d Cir. 2012); Erie Telecommunications, Inc. v. City
of Erie, Pa., 853 F.2d 1084, 1096 (3d Cir. 1988), the injunction in this case restricts
the actions of an entity that was not a party to the contract that is alleged to be the
source of the restriction. Cleopatra did not sign the Consent Order. The Order was
sealed when entered, although Cleopatra became aware of its existence before it
had spent any significant amount of money to make the Film. The District Court
applied the Consent Order to Cleopatra because of its relationship with Pyle, who
was a party to the Order.
Of course, an injunction may be applied to an entity that acts “in active
concert or participation” with anyone bound by the injunction, see Fed. R. Civ. P.
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65(d)(2)(C), and in some circumstances the All‐Writs Act, 28 U.S.C. § 1651, may
be used to prevent an entity from acting to interfere with an injunction, see
Pennsylvania Bureau of Corrections v. United States Marshals Service, 474 U.S. 34, 40
(1985); Ass’n for Retarded Children of Connecticut, Inc. v. Thorne, 30 F.3d 367, 369 (2d
Cir. 1994).4 However, the application of an injunction to an entity that contracts
with someone arguably bound by its terms in order to prepare an expressive work
such as a movie raises serious concerns not present in the typical Rule 65(d)(2)(C)
situation.
These considerations oblige us to examine with care the terms of the
Consent Order alleged to have been violated. The key provision is section 3, the
relevant terms of which provide:
3. 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.
Joint App’x 40‐41.
4 The District Court noted that “[a] court’s power to enforce provisions of consent
orders comes principally from the All Writs Act.” Van Zant, 270 F. Supp. 3d at 673.
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Injunctions must “be specific and definite enough to apprise those within its
scope of the conduct that is being proscribed.” In re Baldwin‐United Corp., 770 F.2d
328, 339 (2d Cir. 1985) (internal citation omitted). As the Supreme Court has
observed, “Since an injunctive order prohibits conduct under threat of judicial
punishment, basic fairness requires that those enjoined receive explicit notice of
precisely what conduct is outlawed.” Schmidt v. Lessard, 414 U.S. 473, 476 (1974).
An initial, and ultimately dispositive, question on this appeal is whether the
terms of the Consent Order, implemented by the District Court’s injunction, are
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.
The script for the movie that Cleopatra has been enjoined from distributing
illustrates the inconsistency, or at least the insufficient specificity, of the terms of
the Consent Order. The script tells the story of the plane crash in which Ronnie
and other members of the band were killed and from which Pyle walked away.
That crash is part of the “history” of the band, but it is also an “experience” of Pyle
with the band, likely his most important experience. Provisions of a consent decree
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that both prohibit a movie about such a history and also permit a movie about
such an experience are sufficiently inconsistent, or at least insufficiently specific,
to support an injunction.
We recognize that sections 4 and 5 impose restrictions in addition to those
imposed by section 3. Echoing the proviso of section 3, section 4 prohibits
“exploitation in whole or in part of the history of the Lynyrd Skynyrd band
without the prior written approval of Rossington, Collins and [Ronnie’s] Estate.”
Section 5 prohibits “use of the name, likeness, portrait, picture, or biographical
material” of Ronnie or Gaines with certain exceptions. These provisions may well
impose restrictions on activities other than those explicitly permitted by section 3,
but they cannot be interpreted to prohibit what section 3 explicitly permits.
Conclusion
The judgment of the District Court is reversed, and the injunction is vacated.
Reversal of the judgment necessarily vacates the award of attorney’s fees.
1
17-2849-cv
Ronnie Van Zant, Inc. v. Artimus Pyle
JON O. NEWMAN, Circuit Judge, with whom PETER W. HALL, Circuit Judge,
joins, concurring:
I join the Court’s opinion holding that the provisions of the Consent Order
on which the District Court’s injunction is based are inconsistent, or at least
insufficiently precise, to support an injunction. I write separately to explain why I
believe the injunction must be vacated for the additional reason that the script for
the movie in question reveals that the movie would not exceed the authority that
the consent decree explicitly gives to Artimus Pyle and therefore to Cleopatra.
Section 3 of the Consent Order provides:
“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[] [and] 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.”
Joint App’x 40‐41 (emphases added).
2
After examining a script for the movie,1 I believe that the movie will “describe and
portray” a major “experience” that Pyle had with the band—the events before,
during, and after the plane crash that killed members of the band and from which
Pyle emerged alive—and that the movie will not be a “history” of the band. The
Supreme Court has noted that “where a speech case has . . . been tried in a federal
court, . . . we are obliged to make a fresh examination of crucial facts.” Hurley v.
Irish‐American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 567 (1995).
Plaintiffs’ exhibit No. 13 is a script of 108 pages. A page‐by‐page analysis of
this script is set forth in the margin.2 This analysis reveals that six pages (2‐4, 7‐8,
1The parties did not place in the record any version of the movie itself. The parties
agreed at oral argument that there are no significant differences among the various
versions of the script.
2 1: Pyle (referred to as “Artimus,” his first name) says, “[T]his is my story.”
2‐4: Scene of band playing.
5: Band playing, focusing on Pyle.
6. Same scene, with Pyle leaving the stage and breaking up a fight.
7‐8: Same scene plus green room.
9 (1st half): Green room, focusing on Pyle.
9 (2d half)‐10: On a staircase, Pyle encounters a drunk fan.
11 (1st half): Pyle breaks up a fight.
11 (2d half)‐19 (1st half): Hotel room, band members, focusing on Pyle and Ronnie.
19 (2d half)‐20: Pyle’s hotel room.
20 (bottom of page)‐21 (first half): Columbia records phone call re chartering a plane.
21 (2d half)‐22: Tarmac, Pyle and others see a plane coming in.
23‐30 (1st half): Cabin and cockpit of plane, with band members, including Pyle; plane
lands.
30 (2d half)‐32 (1st half): Tarmac, phone call about the plane.
32 (2d half)‐35 (1st half): Flashback to hotel room, band members welcome Pyle.
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72 (2d half‐73 (1st half)) show the band without focusing on Pyle, four pages (5, 9,
11, and 32) show the band but focusing on Pyle, and ninety‐eight pages portray
experiences from Pyle’s life including his hiring by the band, his interactions with
35 (2d half)‐36 (1st half): Pyle’s house, Pyle and his wife.
36 (2d half)‐38 (1st half): Flashback to Pyle’s house where he receives a phone call offering
him a tryout with the band.
38 (2d half)‐39: Ballroom where Pyle is playing when he gets a phone call hiring him.
40‐42 (1st half): Flashback to Pyle driving to meet the band, returning to pick up his
drums, arriving at ballroom.
42 (2d half)‐46 (1st half): Interior and exterior of Pyle’s house, interior of Pyle’s car
including conversation about reentering the plane.
46 (2d half)‐47 (1st half): Exterior of highway, tarmac, jeep.
47 (2d half)‐72 (1st half): Tarmac, interior of plane, including cockpit, with Pyle advising
pilots and passengers as plane encounters trouble.
72 (2d half)‐73 (1st half): Montage of band members seeing brief scenes of their lives flash
before their eyes.
73 (2d half)‐75 (1st half): Plane crashes.
75 (2d half)‐86 (1st half): Pyle leaving the crashed plane, helping someone off the plane,
and walking through woods.
86 (2d half)‐87 (1st half): Pyle encounters a man, Mote, who, apparently fearing an
intruder at nighttime, fires his shotgun at Pyle, wounding him.
87 (2d half)‐88 (1st half): Mote’s farm, Pyle calling his wife.
88 (2d half)‐93 (1st half): Outside Mote’s farm where Pyle is rescued.
93 (2d half)‐95 (1st half): Magnolia Hospital where Pyle is treated.
95 (2d half): Brief flashback sequence inside plane as plane crashes.
95 (bottom)‐97 (1st half): Magnolia Hospital, focus on Pyle.
97 (2d half)‐100 (1st half): Henry Ford Hospital where Pyle visits the other plane crash
survivors.
100 (2d half)‐105 (1st half): Pyle returns to scene of crash and is questioned by DEA agents
who suspect plane carried narcotics.
105 (2d half)‐106: Magnolia Hospital, focus on Pyle.
107 (1st half): Pyle playing with his band.
107 (2d half): Pyle driving.
108: Graveyard, Pyle voiceover.
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his wife, his actions in the plane just prior to the crash, the crash, his escape from
the crashed plane, his being shot, his hospital treatment, his return to the crash
scene, his playing with his own band, and finally his voiceover at the graveyard.
Clearly, the plane crash and Pyle’s escape from it are a major experience of
his life. Because the plane was carrying members of the band, two of whom were
killed, it would have been impossible for Cleopatra to depict this experience of
Pyle’s without some references to the band. The script does not portray the history
of the band. It portrays an experience from Pyle’s life, precisely what section 3 of
the Consent Order explicitly permits, and, in doing so, it refers to the band, as
section 3 also explicitly permits.
Applying the standard of review appropriate for trial court findings, my
analysis of the script leaves me with “’the definite and firm conviction that a
mistake has been committed.’” Anderson v. City of Bessemer City, N.C., 470 U.S. 564,
573 (1985) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395
(1948)). A rigorous application of the Bessemer/Gypsum standard of review is
especially warranted in reviewing fact‐finding underlying an injunction
prohibiting distribution of a motion picture. See Hurley, 515 U.S. at 567.
For these reasons, I concur in the Court’s opinion.

Outcome: The judgment of the District Court is reversed, and the injunction is vacated.
Reversal of the judgment necessarily vacates the award of attorney’s fees.

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