Grondin v. Rossington

Citation690 F. Supp. 200
Decision Date14 June 1988
Docket NumberNo. 88 Civ. 3192 (RWS).,88 Civ. 3192 (RWS).
PartiesJudith Van Zant GRONDIN, as personal representative of the Estate of Ronald Van Zant, Deceased, Plaintiff, v. Gary R. ROSSINGTON, Leon R. Wilkeson, William N. Powell, Artimus Pyle, Ed King, Randall Hall, Johnny Van Zant, Charlie Brusco, and MCA Records, Inc., Defendants.
CourtU.S. District Court — Southern District of New York

Bender & Frankel, New York City (Sandor Frankel, of counsel), for plaintiff.

Jay Goldberg, P.C., Rossington, Wilkeson, Powell, Pyle, King, Hall, Van Zant, and Brusco, New York City (Jay Goldberg, of counsel), for defendants.

Franklin, Weinrib, Rudell & Vassallo, P.C., New York City (Neil J. Rosini, of counsel), for defendant MCA Records, Inc.

OPINION

SWEET, District Judge.

Plaintiff Judith Van Zant Grondin ("Grondin") has moved for a preliminary injunction pursuant to Rule 65, Fed.R. Civ.P., enjoining defendants Gary R. Rossington ("Rossington"), Leon R. Wilkeson ("Wilkeson"), William N. Powell ("Powell"), Artimus Pyle ("Pyle"), Ed King ("King"), Randal Hall ("Hall"), Johnny Van Zant ("Johnny"), and Charlie Brusco ("Brusco") from performing as a musical group under the name Lynyrd Skynyrd (the new group referred to herein as the "87-88 Skynyrd" or the "new band"), and enjoining defendant MCA Records, Inc. ("MCA") from marketing a record album entitled "Lynyrd Skynyrd Live" (the "album" or "Live"). For the reasons set forth below, preliminary relief will be granted in part and denied in part, and an early trial date will be set.

Prior Proceedings

Grondin filed this action on May 6, 1988. She seeks to enjoin use of the name Lynyrd Skynyrd by the new band both in performing and in record production as well as damages. She claims such use violates an agreement between Grondin and the individual defendants, causes consumer confusion under § 43(c) of the Lanham Act, 15 U.S.C. § 1125(a), constitutes injury to the business reputation of Lynyrd Skynyrd under N.Y. General Business Law § 368-d, and common law unfair competition and tortious interference with her contractual rights. On May 13, 1988, she moved by way of order to show cause for a preliminary injunction to protect her rights under the agreement, under the Lanham Act, and under § 368-d's proscription of dilution. An evidentiary hearing was held on May 20-25, 1988 giving rise to the following facts and conclusions of law.

Facts

This controversy centers around the use of the name Lynyrd Skynyrd, the name of a rock and roll band that was quite popular in the 1970's,1 to describe a current version of that group and to market the new band's record album. The plaintiff is the widow of Ronnie Van Zant ("Ronnie"), the mother of his children and the representative of his estate. The individual defendants are past and current members or affiliates of the new band. MCA is currently marketing the Live album.

The group Lynyrd Skynyrd was formed in the early 1970's. Its founding members were Ronnie and Rossington. The name Lynyrd Skynyrd was chosen as a spoof on the name of their highschool gym teacher and is pronounced Leonard Skinnerd. Soon after, Allen Collins ("Collins"), and defendants Wilkeson and Powell joined the band.

After several years of hard work Lynyrd Skynyrd began to achieve a reasonable amount of success, and by 1974, had entered into an exclusive artists recording agreement with MCA. By 1975, the group decided to form a corporation known as Lynyrd Skynyrd Productions, Inc. ("LSPI") to hold, among other things, all rights to the trade name, trade marks or service marks. The shareholders agreement setting forth these rights was dated September 15, 1975, and was signed by Rossington, Ronnie, Wilkeson, Powell, and Collins.

Over the course of the next two years, Lynyrd Skynyrd achieved great commercial success. The group, which by then included guitarist Steven Gaines, Pyle, and backup singers. They had six record albums on the market by 1977 including an album recording live performances. The albums had sold millions of copies and the band had toured the country, performing in various cities. However, on October 20, 1977, while on tour, the plane in which the group was flying ran out of gas, crashed and Ronnie, Gaines and two others were killed. According to all parties, the survivors were physically and emotionally devastated.

A few months after the crash, Grondin— Ronnie's personal representative and beneficiary— Rossington, Collins, and the widow of Steven Gaines, now Teresa Gaines Rapp ("Rapp") were present in Grondin's home. At that time Grondin, Rossington and Collins agreed orally never to use the name Lynyrd Skynyrd again in an effort not to capitalize on the tragedy that had befallen the group. According to Grondin's testimony, that agreement (the "non-use agreement" or "blood oath") was restated on several occasions.

The blood oath was memorialized in several forms. First, it is in writing in the corporate minutes of a March 14, 1978 LSPI shareholders' meeting. Grondin, as a shareholder, was present at that meeting. A written agreement reflecting the nonuse agreement was signed simultaneously. That agreement purported to be a modification of the September 15, 1975 shareholders' agreement. It restricted the use of the name Lynyrd Skynyrd to material produced with Ronnie before his death.

For the ten years following the crash, the non-use agreement was observed by all concerned. The individual defendants continued to perform but did so under other names and with only limited success. For example, Rossington and Collins at one point formed the Rossington-Collins band.2 Grondin was solicited by various book and film producers to consent to and sell the rights to projects regarding her husband's life and death but rejected them. However, during this period materials recorded by Lynyrd Skynyrd prior to the crash were continually released yielding profits for all involved. The materials consisted of three albums that Grondin was aware of and consented to and one compilation of previously released material put out by MCA of which she was unaware. During this period Grondin and Rapp remarried, Grondin to another musician.

After hotly debating the subject, on September 1, 1987, the survivors of the crash, along with Grondin, elected to conduct a tribute tour to Lynyrd Skynyrd.3 An agreement was entered into whereby LSPI would form a corporation known as "The Tribute, Inc." ("Tribute") and would enter into a licensing agreement with Tribute allowing it to conduct a tour to be completed by December 31, 1987, produce videos of the tour, sell merchandise in connection with the tour, and produce a live album of the tour ("Tribute Agreement"). An accompanying agreement ("Licensing Agreement") actually giving Tribute license to perform the above mentioned acts, including a license to use the name Lynyrd Skynyrd, was entered into simultaneously. Grondin and Rapp, who were to receive 28.57% of the net proceeds from merchandising, were signatories to the Tribute Agreement, but not to the Licensing Agreement which was executed by LSPI. Both agreements contain clauses stating that nothing in the agreement constitutes a waiver of rights relative to the name Lynyrd Skynyrd. On October 1, 1987, Tribute entered into an agreement with MCA, authorizing MCA to produce an album from tour performances.

According to Grondin's testimony, she agreed to the tour under pressure and after rejecting various drafts of the agreement. She testified that the rejected drafts expressly referred to the touring band as Lynyrd Skynyrd. Grondin claims not to have permitted use of the name Lynyrd Skynyrd for the new band. Moreover, according to her testimony, any proceeds she was to receive from merchandising were already due her under a 1982 agreement.

The concerts took place in the fall of 1987. The 1987 tour ran from September 23, 1987 through November 1 of that year, and covered twenty-nine cities. The tour was conducted as a tribute to Lynyrd Skynyrd. Lacy Van Zant, the father of Ronnie and Johnny, began each show by introducing himself as the father of these men and by introducing the band. References to those killed in the crash are made throughout the show, particularly by Johnny, and videos of past performances with the late band members are displayed on a screen behind the musicians.

The record was produced from those performances. The final product is entitled, "Lynyrd Skynyrd Live." These words appear in large, bold, bright blue lettering across the top of the jacket, and they are outlined in white. They stand out starkly against a dark background depicting a concert audience waiving a confederate flag. At the bottom of the jacket front in much smaller, muted gold lettering are the words "Lynyrd Skynyrd Tribute Tour 1987." On the jacket back in red lettering are the words "Southern By The Grace of God." This latter title also appears on the spine of the album. Grondin did not approve the jacket design or the album's title. She testified that she learned of it by reading various trade publications in March 1988 and by seeing it in a record store.

Grondin testified that she first learned of the 1988 tour in February of that year, when she was contacted by an attorney for Powell. She was told that the tour was intended to promote the live album. She did not at that time consent to the tour. She testified that soon thereafter she spoke with Allen Collins expressing her displeasure with the impending concerts. Collins agreed to complain to Rossington about the tour and to thus halt its progress. By April, Grondin testified that she had been contacted by Larkin Collins, Allen's father, who claimed that Rossington had agreed to Allen's demands and had cancelled the tour.

From Ronnie's death through April 1988, Grondin had been a 20% shareholder in LSPI, as well as a director. She essentially stood in Ronnie's shoes. In that month she received notice of a special...

To continue reading

Request your trial
7 cases
  • Piccoli a/S v. Calvin Klein Jeanswear Co.
    • United States
    • U.S. District Court — Southern District of New York
    • September 8, 1998
    ...¶ 14.2. 38. 861 F.Supp. 253 (S.D.N.Y.1994). 39. Id. 861 F.Supp. at 258 (citing In re Gulf Oil, 725 F.Supp. at 733; Grondin v. Rossington, 690 F.Supp. 200, 207 (S.D.N.Y.1988); MacDraw, Inc. v. CIT Group Equipment Financing, Inc., No. 91 Civ. 5153(SWK), 1994 WL 17952, at * 12 (S.D.N.Y. Jan. 1......
  • Ronnie Van Zant, Inc. v. Pyle
    • United States
    • U.S. District Court — Southern District of New York
    • August 23, 2017
    ...and the band members on the tribute tour disputed the use of the Lynyrd Skynyrd name, which culminated in a lawsuit, Grondin et ano. v. Rossington et al., 690 F.Supp. 200, in which Jenness sought to enjoin the use of the band's name in performance (the "1988 Action"). (Tr. 16:23–17:15.) On ......
  • Sazerac Co., Inc. v. Falk
    • United States
    • U.S. District Court — Southern District of New York
    • August 18, 1994
    ...circumstances. See, e.g., In re Gulf Oil/Cities Serv. Tender Offer Litig., 725 F.Supp. 712, 733 (S.D.N.Y.1989); Grondin v. Rossington, 690 F.Supp. 200, 207 (S.D.N.Y.1988); MacDraw, Inc. v. CIT Group Equipment Financing, Inc., 91 Civ. 5153, 1994 WL 17952 at *12, 1994 U.S. Dist. LEXIS 363 at ......
  • Gallina v. Giacalone
    • United States
    • New York Supreme Court
    • February 14, 1997
    ...Apple Corps Ltd. v. A.D.P.R., Inc., 843 F.Supp. 342 [M.D.Tenn.1993]; Baker v. Parris, 777 F.Supp. 299 [S.D.N.Y.1991]; Grondin v. Rossington, 690 F.Supp. 200 [S.D.N.Y.1988]; Rick v. Buchansky, supra, 609 F.Supp. 1522 [S.D.N.Y.1985] Applying the foregoing legal principles to the present case,......
  • Request a trial to view additional results
1 books & journal articles
  • Trade Emblems
    • United States
    • University of Nebraska - Lincoln Nebraska Law Review No. 76, 2021
    • Invalid date
    ...more interesting cases of this genre involve groups of performing artists who decide to dissociate. See, e.g., Grondin v. Rossington, 690 F. Supp. 200 (S.D.N.Y. 1975); Rick v. Buchansky, 609 F. Supp. 1522 (S.D.N.Y. 1985); Rare Earth, Inc. v. Hoorelbeke, 401 F. Supp. 26 (S.D.N.Y. 1975); Noon......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT