Second Circuit vacates permanent injunction blocking release of film that chronicles events before, during and after 1977 plane crash that killed members of band Lynyrd Skynyrd from perspective of surviving member, holding that injunction was based on “inconsistent, or at least insufficiently precise” language in prior consent order governing use of band’s name and story.

Plaintiffs, surviving members of the band Lynyrd Skynyrd and heirs and representatives of the estates of deceased band members, filed a suit against Cleopatra Records Inc.; Cleopatra Films, a division of Cleopatra Records Inc.; and band member Artimus Pyle to enjoin them from releasing the film “Street Survivors: The True Story of the Lynyrd Skynyrd Plane Crash,” based on a consent order from a 1988 lawsuit, Grondin v. Rossington, between some of the parties to this present case.

Ronnie Van Zant, Gary R. Rossington, Allen Collins and others founded the Southern rock band Lynyrd Skynyrd in the 1960s. Pyle joined the band as a drummer, and Steve Gaines joined as guitarist, vocalist and songwriter, in 1975. On Oct. 20, 1977, an airplane carrying the band members crashed in Mississippi. Van Zant, Gaines and several others died. Pyle, Rossington and Collins survived.

After the plane crash, Judith Van Zant (Ronnie Van Zant’s widow), Rossington and Collins entered into a “blood oath,” promising never to use the name Lynyrd Skynyrd again. A decade later, however, the surviving band members launched a Lynyrd Skynyrd tribute tour. Judith sued Pyle, Rossington and others in the Grondin case, which ended with a consent order restricting how the parties can use the name Lynyrd Skynyrd, Ronnie Van Zant’s biographical material and the history of the band. The consent order permits the parties to exploit their own life stories and to portray their own experiences with the band in movies.

Nearly 30 years later, Cleopatra decided to make a film about Lynyrd Skynyrd and the 1977 plane crash through the lens of one of the band members. Pyle signed a contract with Cleopatra giving him 5 percent of the film’s net receipts and credit as a consultant or co-producer, among other things. After learning about the film from press releases, plaintiffs sent a cease and desist letter to Cleopatra, asserting that, in accordance with the consent order, Cleopatra was “not authorized to make a film which either purports to be or is about the [b]and, 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.” Cleopatra went forward with the film.

Plaintiffs sued Cleopatra and Pyle in April 2017, seeking to enjoin them from releasing the film. After a two-day bench trial in July, the district court granted plaintiffs a permanent injunction prohibiting Cleopatra from distributing the film “and other related activities,” based on the consent order. Cleopatra argued that they could not be bound by the consent order, but the district court disagreed. Pyle’s activities ― advising on the script, cast and costumes, and writing original music for the film ― fell within the scope of the consent order, and because Cleopatra acted “in concert” with Pyle to produce the film, Cleopatra was similarly bound. In addition to the injunction against Cleopatra, the court awarded judgment to plaintiffs and against Cleopatra and Pyle, jointly and severally, for attorneys’ fees and costs.

Defendants appealed, arguing that the district court’s ruling was a “classic First Amendment violation involving an unlawful prior restraint.” The Second Circuit rejected this argument on the grounds that no government entity has tried to prevent the release of the film. The panel noted, however, that the case does “implicate some free speech concerns.” Citing the U.S. Supreme Court’s Organization for a Better Austin v. Keefe, the court cautioned that because the injunction restrains “the viewing of an expressive work prior to its public availability,” courts “should always be hesitant to approve such an injunction.”

The Second Circuit then analyzed the key provision of the consent order:

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.

In accordance with the principle of basic fairness, those enjoined from certain conduct need specific notice as to what is actually prohibited. The Second Circuit then questioned whether the consent order was sufficiently specific and enforceable. According to the consent order, Pyle could make a movie that describes his experiences with the band and could refer to Lynyrd Skynyrd but he could not make a movie on the history of the band. The Second Circuit found this to be inconsistent, or at least insufficiently specific, and pointed to the film’s script as illustrative of this point. The film recounts the story of the plane crash. That plane crash is a part of the ‘history” of the band but, at the same time, it is also an experience that Pyle had with the band. In the Second Circuit’s view, the consent order simultaneously prohibited and allowed the same movie, thus rendering its terms “sufficiently inconsistent, or at least insufficiently specific to support an injunction.” The court then turned to two other provisions of the consent order. One prohibited “exploitation in whole or in part of the history of the Lynyrd Skynyrd band without the prior written approval of Rossington, Collins and [Van Zant’s] Estate.” The other prohibited “use of the name, likeness, portrait, picture, or biographical material” of Van Zant or Gaines, subject to certain exceptions. The Second Circuit asserted that these two additional provisions cannot be interpreted to prohibit what the key provision or the consent order expressly permits. The panel vacated the judgment, the injunction, and the award of fees and costs, and remanded the case back to the district court.