Intellectual Property Law

Ninth Circuit Affirms Dismissal of Beach Boy's Trademark Claims

By Michael Atkins

Beach Boy/Appellant Mike Love

Beach Boy Mike Love appealed the dismissal of a derivative suit he brought on behalf of Brother Records, Inc. (“BRI”), the corporation that owns THE BEACH BOYS registered trademark, against the UK-based Sanctuary Records Group, Ltd. He also appealed the award of attorney’s fees against him.

The suit paralleled claims Mr. Love made in a direct lawsuit against Sanctuary. Sanctuary moved to dismiss Mr. Love’s claims on the ground that the related direct action had already been dismissed.

On July 8, the Ninth Circuit affirmed, in part because it found a corporation does not possess any right of publicity and in part because the cause of action did not implicate either a right of publicity or the Lanham Act since it arose in England.

“First, Love claims Sanctuary violated his own and BRI’s common law rights of publicity in the Good Vibrations promotion, by using his and The Beach Boys’s names, photographs, and likenesses to their commercial advantage without permission. In the Opinion, we held that Love’s claim was governed by English law, and English law does not recognize a right of publicity. In his district court papers, Love cited no California case that has recognized that a corporation has a right of publicity or otherwise has standing to protect the publicity rights of another. Nor did he cite any California case that has recognized that a band or group has a right to publicity. Even assuming BRI could bring a right of publicity suit on behalf of The Beach Boys, and that California somehow had an interest in the case because BRI is incorporated in California, England’s interest in this case is significantly greater.

The case cite is Love v. Brother Records, Inc., Nos. 08-55035 and 05-55973, 2010 WL 2781582 (9th Cir. July 8, 2010).

Photo Credit: Brian Peters

Full post as published by Seattle Trademark Lawyer on July 18, 2010 (boomark / email).