Love v. Assoc.D Newspapers
| Decision Date | 08 July 2010 |
| Docket Number | 07-56568.,No. 07-56008,07-56008 |
| Parties | Mike LOVE, Plaintiff-Appellant,v.ASSOCIATED NEWSPAPERS, LTD., e/s/a The Mail on Sunday; Sanctuary Records Group, Ltd.; Sanctuary Records Group, Inc.; Sanctuary Artist Management, Inc.; Sanctuary Music Productions, Inc.; Bigtime.TV; Brian Wilson; Melinda Wilson; Jean Sievers; The Lippin Group, Inc.; Soop LLC; David Leaf, Defendants-Appellees.Mike Love, Plaintiff-Appellant,v.Sanctuary Records Group, Ltd.; Sanctuary Records Group, Inc.; Sanctuary Artist Management, Inc.; Sanctuary Music Productions, Inc.; Brian Wilson; Jean Sievers; The Lippin Group, Inc.; Soop LLC; David Leaf, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
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Mitchell C. Tilner (argued), Margaret S. Thomas, Horvitz & Levy LLP, Encino, CA and Philip H. Stillman (argued), Stillman and Associates, Cardiff, CA, for plaintiff-appellant Mike Love.
Kelli L. Sager, Andrew J. Thomas, Robyn Aronson, Davis Wright Tremaine LLP, Los Angeles, CA, for defendant-appellee Associated Newspapers, Ltd.
Howard L. Weitzman, Gregory Aldisert (argued), Gregory Gabriel, Kinsella Weitzman Iser Kump & Aldisert LLP, Santa Monica, CA, for defendants-appellees Sanctuary Records Group, Ltd., Sanctuary Records Group, Inc., Sanctuary Artist Management, Inc., and Sanctuary Music Productions, Inc.
Neville L. Johnson, Johnson & Johnson LLP, Beverly Hills, CA, for defendant-appellee BigTime.tv.
Barry E. Mallen, Mark S. Lee, Benjamin G. Shatz, Manatt, Phelps & Phillips, LLP, Los Angeles, CA, for defendants-appellees Brian Wilson, Melinda Wilson, Jean Sievers, The Lippin Group, Inc., and SOOP LLC.
Edward A. Ruttenberg, Leopold Petrich & Smith, PC, for defendant-appellee David Leaf.
Appeal from the United States District Court for the Central District of California, Audrey B. Collins, Chief District Judge, Presiding. D.C. No. CV-05-07798-ABC.
Before SIDNEY R. THOMAS and BARRY G. SILVERMAN, Circuit Judges, and JEREMY D. FOGEL,* District Judge.
This appeal presents the question inter alia, of whether the Lanham Act and California's common law right of publicity apply extra-territorially to events occurring in Great Britain. Under the circumstances presented by this case, we conclude that such claims are not viable, and we affirm the judgments entered by the district court.
In 2004, founding Beach Boy member Brian Wilson, who had written (or co-written) most of the iconic Beach Boy hits, released a solo album called Smile. Wilson mounted a tour, with backup band, to support the album. It had been years since Brian Wilson had toured regularly with The Beach Boys. As part of settlement of earlier litigation, Mike Love, also a founding member of The Beach Boys, had acquired the right to use The Beach Boys trademark in live performances. He continued to tour as The Beach Boys with a varying lineup, playing hundreds of shows a year.
As part of a promotion campaign, the British newspaper the Mail on Sunday distributed a compact disc, consisting of Brian Wilson's solo versions of Beach Boy songs, along with his solo work, with approximately 2.6 million copies of the paper. The CDs were distributed in the United Kingdom and Ireland. Approximately 425 copies of that edition of the Mail were distributed in the United States without the CD, including 18 in California.
The cover of the distributed compact disc, entitled Good Vibrations, featured Brian Wilson, along with three smaller photographs of The Beach Boys. The small photographs of the group included a picture of Mike Love. The front page of the Mail on Sunday advertised the CD prominently, and included an image of the CD's cover. In addition to sound recordings, the CD contained two videos of live performances by Wilson's band.
Love was concerned that a second British invasion and Wilson's return to touring and recording would dampen ticket sales for the live performances of his touring group. Thus, in response to the English promotion, Love sued a variety of parties for their involvement in the promotion campaign. He sued Wilson; Associated Newspapers Limited (“ANL”), the publisher of Mail on Sunday; BigTime.tv, a British company that licensed and recorded the compact disc; Sanctuary Records Group, Ltd., the entity that owned the rights to the Brian Wilson recordings relevant to this case, as well as Sanctuary Records Group NY, Sanctuary Music Management, Inc., and Sanctuary Music Productions, Inc. (“the Sanctuary defendants”); Jean Sievers, the Lippin Group, Inc., and SOOP LCC, Wilson's managers and publicist; David Leaf, a writer and producer for Wilson; and Melinda Wilson, Wilson's wife.
The district court dismissed the complaint against BigTime.tv and ANL for lack of personal jurisdiction, and awarded sanctions to BigTime.tv. It dismissed with prejudice three of the Sanctuary defendants (Sanctuary Records Group NY, Sanctuary Music Management, Inc., and Sanctuary Music Productions, Inc.) on the basis of their unopposed motion asserting that they had nothing whatsoever to do with the case. The court dismissed Melinda Wilson from the suit with prejudice, as Love had not been given permission to add her as a defendant, and because the complaint alleged no facts that would support keeping her in the lawsuit.
The district court dismissed the claims for violation of California's statutory and common law rights of publicity after holding that English law, which does not recognize a right of publicity, governed. It dismissed three Lanham Act claims, two for lack of standing, and one after finding that the extra-territorial reach of the statute did not encompass the claims. The district court also dismissed four claims raised only against Wilson, four claims against various defendants for interference with contractual relations and prospective economic advantage, and three copyright claims. Because Love's claim of violation of California fair business practices law depended on the survival of the Lanham Act claims, and because his civil conspiracy allegation depended on the survival of at least one other claim, and because Love had failed to allege acts that would constitute conspiracy, the district court dismissed those two claims as well.
Over the course of the proceedings, Love filed three complaints. In his first amended complaint, he alleged that he was domiciled in Nevada. In his second amended complaint, he removed that line, and claimed to be “an individual with a residence in California.” The district court “ strongly admonishe[d]” Love for alleging to have a residence in California and, based on this “legal nullity,” claiming in papers that “Love is a California resident.” (emphasis in original).
Love responded to criticism by the district court that he had failed to introduce any evidence that Good Vibrations had ever entered the U.S. market by filing a declaration by Steven Surrey that Surrey had bought a copy of Good Vibrations on eBay because he thought it was an official Beach Boys product (“Surrey affidavit”). Because of uncontested evidence that Surrey was a close associate of Love's attorney and had fabricated his allegation that he was confused by the labeling of Good Vibrations, the district court never considered the Surrey affidavit to have any evidentiary value, and entered sanctions against Love's counsel.
In response to some confusion as to whether and when a final and appealable judgment had been issued, the district court entered a stipulated final judgment on June 1, 2007. Love timely filed a notice of appeal on July 2, 2007. On September 7, 2007, the district court granted the motions for attorney's fees filed by eight defendants, including the Sanctuary defendants. Love appealed the attorney's fees award on October 17, 2007. The two appeals have been consolidated.
After reaching settlement with many of the defendants in this case,1 Love continues to appeal the following issues: dismissal of BigTime.tv; dismissal of the right of publicity claims; dismissal of the conspiracy claim; dismissal of the three Lanham Act claims and the related California unfair business practices claim; and the award of attorney's fees to the Sanctuary defendants.2
The central issue before us is whether American claims for relief can be asserted on the basis of conduct that only occurred in Great Britain. The defendants think not. Love wishes they all could be California torts.
The district court dismissed BigTime.tv from the suit for lack of personal jurisdiction, a decision we review de novo. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir.2004). The plaintiff bears the burden of demonstrating that jurisdiction is appropriate. Id. Where, as here, a motion to dismiss is based on written materials rather than an evidentiary hearing, the plaintiff need only make a prima facie showing of jurisdictional facts. Id. Uncontroverted allegations in the complaint must be taken as true, and conflicts over statements contained in affidavits must be resolved in Love's favor. Id.
Where there is no applicable federal statute governing personal jurisdiction the district court applies the law of the state in which it sits. Yahoo! v. La Ligue Contre Le Racisme, 433 F.3d 1199, 1205 (9th Cir.2006) (en banc).3 California's long-arm jurisdictional statute is coextensive with federal due process requirements. Id.; Cal.Code Civ. Pro. § 410.10. Thus, the district court was permitted to exercise personal jurisdiction over BigTime.tv only if BigTime.tv had “certain minimum contacts” with California “such that the maintenance of the suit d[id] not offend the traditional notions of fair play and substantial justice.” Yahoo!, 433 F.3d at 1205 (internal quotation marks omitted).
The parties agree that we should use the “purposeful direction” or “effects” test in this case. The effects test is satisfied if ...
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