Brown v. Ames ( 2000 )


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  •                        UNITED STATES COURT OF APPEALS
                                FOR THE FIFTH CIRCUIT
    
    
                                      No. 98-20736
    
    
    
                                LEONARD BROWN; ET AL
    
                                           Plaintiffs,
      LEONARD BROWN; WALTER PRICE; PETE MAYES; JAMES NELSON; CLARENCE
      PARKER; LEE J. FRAZIER, also known as Skipper Lee Frazier; JOE
    HUGHES, also known as Joe “Guitar” Hughes; RAYFIELD JACKSON, also
     known as Houston Guitar Slim; FREDDIE COLLINS, also known as Big
      Roger Collins; ALFRED R. BETTIS; FALIETA GREEN; THOMAS DARDAR,
        formerly known as Tommy Dardar, presently known as; DEBRA L.
       NICKERSON; WELDON BONNER, presently known as Juke Boy Bonner;
                   LIZETTE COBB; ARNETT COBB; KINNEY ABAIR
    
                                                         Plaintiffs-Appellees,
                                                v.
    
                             ROY C. AMES, Etc.; ET AL.
    
                                                         Defendants
    
       ROY C. AMES, doing business as Clarity Music & Home Cooking
    Records
    
                                                         Defendant-Appellant
    
         COLLECTIBLES INC., doing business as Collectibles Records
    
                                                         Movant-Appellant.
    
    
             Appeals from the United States District Court for the
                           Southern District of Texas
    
    
                                    February 7, 2000
    
    Before JONES and DENNIS, Circuit Judges, and PRADO*, District Judge.
    
    
         *
                District    Judge   for   the    Western District of Texas, sitting by
    designation.
    EDITH H. JONES, Circuit Judge:
    
               Appellants Collectibles and Ames principally appeal the
    
    district court’s determination that appellees’ state law claims for
    
    violation of their rights of publicity are not preempted by the
    
    Copyright Act.     The misappropriation consisted of appellants’
    
    unauthorized use of appellees’ names and likenesses to market
    
    appellees’ musical performances on CD’s and audio cassettes for
    
    which appellants also lacked copyrights.    Because a person’s name
    
    and likeness in themselves are not copyrightable, and because the
    
    state law tort for misappropriation does not conflict with federal
    
    copyright law, appellees’ claims are not preempted.    As the other
    
    issues raised on appeal lack merit, the judgment is affirmed.
    
                      I. FACTUAL & PROCEDURAL HISTORY
    
               Collectibles is a record label that distributes and sells
    
    music recordings, especially repackaged vintage recordings.     Ames
    
    is a music producer specializing in Texas blues.      Appellees are
    
    individual blues musicians, songwriters, music producers or heirs
    
    of such.
    
               Around 1990, Ames, d/b/a Home Cooking Records, licensed
    
    to Collectibles for commercial exploitation master recordings that
    
    included performances by appellees.   The written license agreements
    
    also purported to give Collectibles the right to use the names,
    
    photographs, likenesses and biographical material of all those whose
    
    performances were on the master recordings.    Ames represented and
    
    
                                     2
    warranted to Collectibles that Ames was entitled to convey these
    
    rights. Using the master recordings, Collectibles manufactured and
    
    distributed cassettes and CD’s, as well as music catalogs, with the
    
    names and sometimes the likenesses of the performers on or in them.
    
    In addition, Ames, but not Collectibles, sold posters or videotapes
    
    with the names or likenesses of the plaintiffs.
    
              In 1994, appellees sued Ames, Collectibles and Jerry and
    
    Nina Greene, the owners of Collectibles. Before trial, the district
    
    court dismissed appellees’ negligence and conversion claims as
    
    preempted by the Copyright Act, and dismissed without prejudice the
    
    copyright claims of those appellees who had not timely obtained
    
    registration    certificates.    Appellees’    actions    for   copyright
    
    infringement, violations of the Lanham Act and for misappropriation
    
    of name or likeness under Texas state law proceeded to a jury trial.
    
    At the close of appellees’ case, the Court granted judgment as
    
    matter of law for defendants Jerry and Nina Greene, and the jury
    
    found in favor of all defendants on the Lanham Act claims.            These
    
    rulings have not been appealed.
    
              The    jury   also    found   that    the      defendants     had
    
    misappropriated the names and likenesses of the appellees and had
    
    infringed (in the case of Collectibles, innocently) copyrights held
    
    by some of the appellees.       Finally, the jury found that Weldon
    
    Bonner had not executed a Recording Agreement with Roy Ames.           The
    
    jury awarded the appellees misappropriation damages of $127,000--
    
    $100,000 from Ames and $27,000 from Collectibles.           In its final
    
                                       3
    judgment of August 3, 1998, the court held Collectibles liable for
    
    $1,800     for    copyright    infringement        and   for    $27,000    for
    
    misappropriation     and    Ames    liable   for    $22,500    for   copyright
    
    infringement and for $100,000 for misappropriation.
    
                Collectibles and Ames have appealed on several grounds.
    
    First,     they   assert    that    the    Copyright     Act   preempts    the
    
    misappropriation claims.        Second, they assert that the district
    
    court should have enforced the allegedly notarized January 1975
    
    Recording Agreement between Ames and Weldon Bonner, notwithstanding
    
    the jury verdict that Bonner did not sign it, and that the district
    
    court incorrectly instructed the jury on the burden of proof.
    
    Third, they claim that the district court improperly awarded a
    
    copyright to Leonard Brown for “Ain’t Got Much” because his wife
    
    wrote the song and he lacked a written assignment from her.
    
    Finally, Collectibles, but not Ames, asserts that the plaintiffs did
    
    not   present     legally     sufficient     evidence     to    support    the
    
    misappropriation damages award.
    
                                  II.    DISCUSSION
    
    A. Preemption
    
                This Court reviews a district court’s conclusions of law
    
    de novo.    See Pebble Beach Co. v. Tour 18 I Ltd., 
    155 F.3d 526
    , 537
    
    (5th Cir. 1998).
    
                The Copyright Act provides that:
    
          On or after January 1, 1978, all legal and equitable rights
          that are equivalent to any of the exclusive rights within the
    
                                           4
           general scope of copyright as specified by section 106 in
           works of authorship that are fixed in a tangible medium of
           expression and come within the subject matter of copyright as
           specified by sections 102 and 103, whether created before or
           after that date and whether published or unpublished, are
           governed exclusively by this title. . . .
    
    17 U.S.C. §301(a).       Section 301 requires the fulfillment of two
    
    conditions.    First, the content of the protected right must fall in
    
    the subject matter of copyright.           Second, the nature of the rights
    
    granted under state law must be equivalent to any of the exclusive
    
    rights in the general scope of a federal copyright.             See Daboub v.
    
    Gibbons, 
    42 F.3d 285
    , 289 (5th Cir. 1995); see also 1 Melville B.
    
    Nimmer & David Nimmer, Nimmer on Copyright §1.01[B] (1999).
    
                 In Texas, the tort of misappropriation provides protection
    
    from   the   unauthorized     appropriation     of   one’s   name,   image   or
    
    likeness. See Moore v. Big Picture Co., 
    828 F.2d 270
    , 275 (5th Cir.
    
    1987). It is best understood as a species of the right of publicity
    
    or of privacy.    See id. To prevail, a plaintiff must prove that (1)
    
    the defendant misappropriated the plaintiff’s name or likeness for
    
    the value associated with it and not in an incidental manner or for
    
    a newsworthy purpose; (2) the plaintiff can be identified from the
    
    publication;     and   (3)   the   defendant   derived   some   advantage    or
    
    benefit.     See Matthews v. Wozencraft, 
    15 F.3d 432
    , 437 (5th Cir.
    
    1994).
    
                 Appellants argue strenuously that appellees have not
    
    presented an independent action for misappropriation.                 Because
    
    appellees’ names and/or likenesses were used to identify their
    
    
                                           5
    musical works in Collectibles’ CD’s, tapes and catalogs, appellants
    
    assert      that   the   core    of   the       misappropriation     and    copyright
    
    infringement claims is the same, compelling preemption under section
    
    301 of the misappropriation claims.
    
                  Appellants’ argument ignores, however, that the content
    
    of the right protected by the misappropriation tort does not fall
    
    into the subject matter of copyright, as section 301 requires.                     As
    
    the     district       court     correctly         recognized,      the     tort   for
    
    misappropriation of name or likeness               protects “the interest of the
    
    individual in the exclusive use of his own identity, in so far as
    
    it is represented by his name or likeness, and in so far as the use
    
    may be of benefit to him or to others.”                   Restatement (Second) of
    
    Torts §652C (1977).         In other words, the tort of misappropriation
    
    of name or likeness protects a person’s persona. A persona does not
    
    fall within the subject matter of copyright – it does not consist
    
    of “a ‘writing’ of an ‘author’ within the meaning of the Copyright
    
    Clause of the Constitution.”          Nimmer, supra, §1.01[B][1][c]; Jarvis
    
    v.    A&M   Records,     
    827 F. Supp. 282
    ,    297   (D.N.J.   1993);    Bi-Rite
    
    Enterprises, Inc. v. Button Master, 
    555 F. Supp. 1188
    , 1201 (S.D.N.Y.
    
    1983); Apigram Publishing Co. v. Factors, Etc., Inc., 
    1980 WL 2047
    
    (N.D.Ohio July 30, 1980)(available on WESTLAW); Lugosi v. Universal
    
    Pictures,     
    25 Cal. 3d 813
    ,   849    (1979)(Bird,     C.J.,       dissenting).
    
    Furthermore, contrary to appellants’ implications, appellees’ names
    
    and likenesses do not become copyrightable simply because they are
    
    
    
                                                6
    used to identify the source of a copyrighted work. Therefore, their
    
    misappropriation claims do not fit the terms of §301 preemption.
    
                 Given     the    fact    that      a    name    or     likeness      is   not
    
    copyrightable, appellants’ reliance on Daboub is unavailing.                            In
    
    Daboub, the plaintiffs alleged that ZZ Top had both infringed their
    
    copyright in and misappropriated one of their songs, and this Court
    
    held that section 301 of the Copyright Act preempted the state law
    
    misappropriation claim.           See Daboub, 42 F.3d at 287, 290.                     The
    
    crucial difference between the two cases is that in Daboub the basis
    
    of the misappropriation claim, as well as the copyright infringement
    
    claim, was the song itself, bringing it within section 301's ambit,
    
    whereas here the basis of the misappropriation claim was defendants’
    
    use of plaintiffs’ names and/or likenesses.
    
                 The     appellants      also    cite      Fleet      v.   CBS,    Inc.,    
    58 Cal. Rptr. 2d 645
     (Cal. Ct. App. 1996), which, although more similar,
    
    shares the same factual difference.                    In Fleet, plaintiffs were
    
    actors in a copyrighted film who alleged that the exploitation of
    
    the    copyrighted     work    itself       infringed       their      state   right    of
    
    publicity.     See id. at 647.          They complained not only about the
    
    showing of the film, but also about the use of pictures from the
    
    film for advertising.         See id.   Because the individual performances
    
    in    the   film   were   copyrightable,         the    court     held    their    claims
    
    preempted by federal copyright law.                 See id. at 650.       Thus, Fleet,
    
    like Daboub, involved a claim of misappropriation of something --
    
    in Fleet, dramatic performances; in Daboub, songs -- within the
    
                                                7
    subject matter of copyright.          This case, in contrast, involves a
    
    claim of misappropriation of name and/or likeness, which is not
    
    within the subject matter of copyright.
    
                This Court finds the Ninth Circuit’s opinions in Midler
    
    v. Ford Motor Co., 
    849 F.2d 460
     (9th Cir. 1988), and Waits v. Frito-
    
    Lay, Inc., 
    978 F.2d 1093
     (9th Cir. 1992), more persuasive than the
    
    case law urged by appellants. These cases, which the district court
    
    relied upon, involved the misappropriation of the vocal styles of
    
    Bette Midler and Tom Waits.           The Ninth Circuit held that because
    
    vocal style is not “fixed,” it is not copyrightable, consequently,
    
    section 301 of the Copyright Act did not preempt a claim of
    
    misappropriation of the singer’s vocal style.             See Waits, 978 F.2d
    
    at 1100; Midler, 849 F.2d at 462. In Daboub’s language, the content
    
    of the protected right (in these cases, the singers’ vocal styles)
    
    did not fall in the subject matter of copyright. Midler foreshadows
    
    the result in this case, reasoning that “[a] voice is as distinctive
    
    and personal as a face.”        849 F.2d at 463.2
    
                One arguably analogous case has held to the contrary.              In
    
    Baltimore Orioles v. Major League Baseball Players Ass’n, 
    805 F.2d 663
     (7th Cir. 1986), the Seventh Circuit held that the Copyright Act
    
    preempted     baseball     players’     rights    of   publicity      in   their
    
    
          2
                The legislative history supports this conclusion, stating: “The
    evolving common law rights of ‘privacy,’ ‘publicity,’ and trade secrets ... would
    remain unaffected as long as the causes of action contain elements, such as an
    invasion of personal rights or a breach of trust or confidentiality, that are
    different in kind from copyright infringement.” H.R. Rep. 1476, 94th Cong., 2d
    Sess. 132 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5748.
    
                                            8
    performances.      The court’s conclusion turned on its controversial
    
    decision that performances in a baseball game were within the
    
    subject matter of copyright because the videotape of the game fixed
    
    the players’ performances in tangible form.               See id. at 674-76.3
    
    Baltimore Orioles, however, has been heavily criticized for holding
    
    that a baseball game is a protectible work of authorship simply
    
    because the performance was recorded on videotape that was itself
    
    copyrightable.       See, e.g., Nimmer, supra, §§1.01[B][1][c] and
    
    2.09[F]; David E. Shipley, Three Strikes and They’re Out at the Old
    
    Ball Game: Preemption of Performers’ Rights of Publicity under the
    
    Copyright Act of 1976, 20 Ariz. St. L.J. 369, 384-88 (1988); Shelley
    
    Ross Saxer, Baltimore Orioles, Inc. v. Major League Baseball Players
    
    Association: The Right of Publicity in Game Performances and Federal
    
    Copyright Preemption, 36 U.C.L.A. L. Rev. 861, 870 (1989).              In any
    
    event, Baltimore Orioles is distinguishable from this case because
    
    the   right   of   publicity   claimed     by   the    baseball   players   was
    
    essentially a right to prevent rebroadcast of games whose broadcast
    
    rights were already owned by the clubs.               Viewed in this way, the
    
    
          3
                Baltimore Orioles appears to concede that some form of the right of
    publicity is not preempted by the Copyright Act, e.g., where a company, without
    the player’s consent, used his name to advertise its product or placed the
    player’s photograph on a trading card.     805 F.2d at 676, n.24.     The court
    disagreed, however, with cases on which we have relied, and with their premise
    that a public figure’s persona is not copyrightable because it cannot be fixed
    in a tangible medium of expression. 805 F.2d at 678 n.26. The court states
    that, “Because a performance is fixed in tangible form when it is recorded, a
    right of publicity in a performance that has been reduced to tangible form is
    subject to preemption.” Id. If the point of this remark is not inconsistent
    with the previous footnote, and if we take it as drawing a distinction between
    the appropriation of a persona and unauthorized copying of one’s photograph, we
    do not disagree. The point isn’t relevant to the instant case.
    
                                           9
    case is the same as Fleet, Inc. v. CBS, supra.                  The case before us
    
    offers no such complication, as the appellee performers did not give
    
    permission    to    the    appellants       to   market    their    recordings    or
    
    photographs.       We decline appellants’ invitation to find name or
    
    likeness copyrightable simply because they are placed on CD’s and
    
    tapes or in catalogs that have copyrightable subject matter recorded
    
    on them.
    
                The fact that section 301 does not apply does not end the
    
    inquiry,     however.       Although    section      301    preemption      is   not
    
    appropriate, conflict preemption might be.                 The Supremacy Clause
    
    dictates that a state law that obstructs the accomplishment of the
    
    full purposes and objectives of Congress is preempted.                    See Hines
    
    v. Davidowitz, 
    312 U.S. 52
    , 67, 
    61 S. Ct. 399
    , 404, 
    85 L. Ed. 581
    
    (1941).
    
                The    major    purpose    of    the   Copyright       Act   is, as the
    
    Constitution states, “to promote the progress of Science and useful
    
    arts.”     U.S. Const., art. I, § 8, cl. 8.              The legislative history
    
    of the Copyright Act describes several other objectives:                     1) to
    
    promote     national      uniformity    and      avoid    the    difficulties    of
    
    determining and enforcing rights under different state laws; 2) to
    
    have copyright protection last for a limited time period, so that
    
    scholars and the public can benefit from the dissemination of
    
    copyrighted materials; and 3) to improve our international dealings
    
    in copyrighted materials.         See House Report at 132, reprinted in
    
    
    
                                            10
    1976 U.S.C.C.A.N. at 5745-46; see also Goldstein v. California, 
    412 U.S. 546
    , 554-56, 
    93 S. Ct. 2303
    , 2308-10, 
    37 L. Ed. 2d 163
     (1973).
    
                Although appellants argue vigorously that not preempting
    
    appellees’ misappropriation claims would undermine the copyright
    
    system, several considerations belie this claim.            First, the right
    
    of publicity that the misappropriation tort protects promotes the
    
    major objective of the Copyright Act – to support and encourage
    
    artistic   and   scientific    endeavors.4       Second,   the   record      here
    
    indicates that industry practice may be to transfer rights in a
    
    performer’s name or likeness when the copyright is transferred.5 If
    
    that is the case, right of publicity claims will rarely interfere
    
    with a copyright holder’s use of the creator’s name or likeness in
    
    connection with the copyright.        Third, common law on the right of
    
    publicity appears ordinarily to permit an authorized publisher or
    
    distributor to use name or likeness to identify truthfully the
    
    author or creator of the goods.6        See Zim v. Western Publishing Co.,
    
    
    573 F.2d 1318
    , 1327 (5th Cir. 1978)(holding that authorization to
    
    publish    author’s   work   provided      implicit   authorization     to    use
    
    author’s name to identify work); Neyland v. Home Pattern Co., 65
    
         4
                The Supreme Court upheld a right of publicity action in Zacchini v.
    Scripps-Howard Broadcasting Co., 
    433 U.S. 562
    , 
    97 S. Ct. 2849
    , 
    53 L. Ed. 2d 965
    (1977). There, the Court said: “the protection [afforded by state right of
    publicity laws] provides an economic incentive for him to make the investment
    required to produce a performance of interest to the public.          The same
    consideration underlies the patent and copyright laws.” Id. at 576.
         5
                In fact, Roy Ames purported to transfer these rights as well as the
    copyright licenses.
    
          6
                Appellants did not make this argument in this litigation.
    
                                          
    11 F.2d 363
    , 364 (2d Cir. 1933)(holding that an implied license to use
    
    the name to sell goods arises if the goods have been sold or
    
    disposed of); Kamakazi Music Corp. v. Robbins Music Corp., 
    534 F. Supp. 69
    , 77 (S.D.N.Y. 1982)(holding that the right to use a
    
    composer’s name or likeness accompanies the grant of the right to
    
    use the underlying compositions); Brinkley v. Casablancas, 
    80 A.D.2d 428
    , 
    438 N.Y.S.2d 1004
     (S.Ct. 1981)(holding that an unauthorized
    
    distribution    of   a   model’s    name      or    likeness       was   actionable);
    
    Restatement    (Third)    of   Unfair     Competition         §    47;   2   J.   Thomas
    
    McCarthy, The Rights of Publicity or Privacy §7.4 (1999).
    
               Only if states allowed similar claims against authorized
    
    publishers or distributors of a work (whether through copyright or
    
    the   public   domain)   would     the   purposes       and       objectives      of   the
    
    Copyright Act be adversely affected.7 Such suits would interfere to
    
    some extent with the uniformity of the copyright system and the
    
    exploitation of works in the public domain.              Currently, however, no
    
    state seems to have such a law, and the general rule is as described
    
    above.   See McCarthy, supra, § 7.4.               Thus, because the tort would
    
    currently not be sustainable against valid copyright holders,
    
    allowing the claim in this context does not impede the transfer of
    
    copyrights or the uniformity of the copyright system.
    
    
    
          7
                Appellants did not use the common law described above as a defense
    to the misappropriation charges. Thus, despite the fact that such a defense
    would seem to be applicable to some of the misappropriation claims, we cannot
    decide the case on those grounds or to allow it to influence our preemption
    analysis.
    
                                             12
                Supreme Court precedent suggesting that courts should
    
    steer a middle ground in considering Copyright Act preemption cases
    
    supports our conclusion that appellees’ misappropriation claims are
    
    not preempted.    The leading Supreme Court case on preemption in the
    
    intellectual property field, Bonito Boats, Inc. v. Thunder Craft
    
    Boats, Inc., 
    489 U.S. 141
    , 
    109 S. Ct. 971
    , 
    103 L. Ed. 2d 118
     (1989),
    
    found that a state statute providing patent-like protection for
    
    ideas deemed unprotected under federal patent law was preempted, but
    
    warned that “the States remain free to promote originality and
    
    creativity in their own domains.”          Id. at 165.    The Court went on
    
    to state that: “the case for federal pre-emption is particularly
    
    weak where Congress has indicated its awareness of the operation of
    
    state law in a field of federal interest, and has nonetheless
    
    decided to ‘stand by both concepts and to tolerate whatever tension
    
    there [is] between them.’” Id. at 166-67 (citing Silkwood v. Kerr-
    
    McGee Corp., 
    464 U.S. 238
    , 256, 
    104 S. Ct. 615
    , 625, 
    78 L. Ed. 2d 443
    
    (1984)).     As noted in the legislative history of section 301,
    
    Congress was aware of the operation of state law on the rights of
    
    privacy and publicity, and indicated its intention that such state
    
    law causes of action remain.8      See House Report at 132, reprinted in
    
    1976 U.S.C.C.A.N. at 5748.
    
    
         8
                Furthermore, the several cases prior to Bonito Boats that dealt with
    preemption in the intellectual property field found that state laws on trade
    secrets and recording piracy were not preempted by the Copyright Act.       See
    Kewanee Oil. Co. v. Bicron Corp., 
    416 U.S. 470
    , 
    94 S. Ct. 1879
    , 
    40 L. Ed. 2d 315
    (1974); Goldstein v. California, 
    412 U.S. 546
    , 
    93 S. Ct. 2303
    , 
    37 L. Ed. 2d 163
    (1973).
    
                                          13
                Since appellees’ misappropriation claims neither fall
    
    within the subject matter of copyright nor conflict with the
    
    purposes and objectives of the Copyright Act, the claims were not
    
    preempted.9
    
    B.   Damages
    
                The jury found that Collectibles owed plaintiffs, in the
    
    aggregate, $27,000 for the misappropriation of their names and/or
    
    likenesses. Collectibles argues that the plaintiffs did not present
    
    legally sufficient evidence on the commercial damage suffered as a
    
    result of Collectibles’ use of their names and/or likenesses.               We
    
    disagree.     An assessment of damages is not reversed unless it is
    
    clearly erroneous, and review and approval of the verdict by the
    
    trial judge, such as occurred here, makes appellate review even more
    
    deferential.    See Ham Marine, Inc. v. Dresser Industries, Inc., 
    72 F.3d 454
    , 462 (5th Cir. 1995).
    
                Under Texas law, “[o]ne who appropriates to his own use
    
    or benefit the name or likeness of another is subject to liability
    
    to the other for invasion of his privacy.”         Restatement (Second) of
    
    Torts, §652C (1977); see also Benavidez v. Anheuser Busch, Inc., 
    873 F.2d 102
    , 104 (5th Cir. 1989)(recognizing §652C of the Restatement
    
    of Torts as descriptive of Texas law); Kimbrough v. Coca-Cola/USA,
    
    
    521 S.W.2d 719
     (Tex.Civ.App. – Eastland 1975, writ ref’d n.r.e.)
    
    (recognizing cause of action for misappropriation under Texas law).
    
          9
                As noted above, our conclusion might be different if Texas were to
    allow such suits against authorized publishers or distributors of a work.
    
                                          14
    “‘To prove a cause of action for misappropriation, a plaintiff must
    
    show that his or her personal identity has been appropriated by the
    
    defendant for some advantage, usually of a commercial nature, to the
    
    defendant.’” Moore v. Big Picture Co., 
    828 F.2d 270
    , 275 (5th Cir.
    
    1987) (quoting National Bank of Commerce v. Shaklee Corp., 
    503 F. Supp. 533
    , 540 (W.D.Tex.1980)).       Furthermore, plaintiffs in
    
    misappropriation of name or likeness actions are not required to
    
    show that the defendant made money from the commercial use of the
    
    name or likeness.   See Henley v. Dillard Dep’t Stores, 
    46 F. Supp. 2d 587
    , 597 (N.D.Tex. 1999).
    
               In a misappropriation of name or likeness action, a
    
    plaintiff may recover general damages plus any proven special
    
    damages.   See Shaklee, 503 F.Supp. at 545.    “General damages are
    
    those which naturally, proximately, and necessarily result from the
    
    improper communications.”    Moore, 828 F.2d at 277.    Collectibles
    
    argues that the evidence is too speculative to support the damages
    
    verdict.   While it is true that recovery is not allowed for damages
    
    that are speculative or conjectural, “mathematical precision is not
    
    required to establish the extent or amount of one’s damage.” Moore,
    
    828 F.2d at 649.    Damages must be “ascertainable by reference to
    
    some fairly definite standard, established experience, or direct
    
    inference from known facts,” but the plaintiff does not have to give
    
    an actual dollar value to his injury.    Id.   In fact, one treatise
    
    states: “the award of such damages [general damages in an invasion
    
    of privacy case] is within the province of the jury and should not
    
                                     15
    be disturbed unless there is a clear showing of excessiveness or
    
    impropriety on the part of the jury.”         J. Hadley Edgar, Jr. & James
    
    B. Sales, Texas Torts & Remedies §53.08[1][a] (1999).
    
               In this case, the jury did not clearly err in its damages
    
    verdict. The damages awarded fit the Moore criteria: the jury could
    
    reasonably have based its estimate of the damages suffered by
    
    plaintiffs and even the value of appellees’ names and/or likenesses
    
    on inferences from the amounts appellees were paid to perform at
    
    blues festivals.
    
    C.    The Notarized Contract.
    
               The jury found that Weldon Bonner did not execute a
    
    January 1, 1975 Recording Agreement with Roy Ames.                    Appellant
    
    Collectibles argues that the evidence was insufficient to overcome
    
    the   presumption    of   authenticity     that   attaches   to   a   notarized
    
    contract   under    Texas   law.10    Appellant    Ames   asserts     that   the
    
    district court erroneously instructed the jury that the burden of
    
    proof was preponderance of the evidence when it should have been
    
    clear and convincing proof.
    
               A party must object to a jury charge before the jury
    
    begins its deliberations in order to preserve its right to appeal
    
    that jury charge, unless the error is so fundamental as to be a
    
    
    
          10
                A jury verdict will be upheld unless, upon reviewing the entire
    record, the facts and inferences point so strongly and overwhelmingly in favor
    of one party that the court believes reasonable men could not arrive at a
    contrary verdict. See Mosley v. Excel Corp., 
    109 F.3d 1006
    , 1008-09 (5th Cir.
    1997).
    
                                          16
    miscarriage of justice. See Ford v. United Gas Corp., 
    254 F.2d 817
    ,
    
    818 (5th Cir. 1958); Farrar v. Cain, 
    756 F.2d 1148
    , 1150 (5th Cir.
    
    1985).   Since Ames did not object to the jury charge on the burden
    
    of proof and the alleged error is not so fundamental as to be a
    
    miscarriage of justice, he has waived any appeal on that basis.
    
                Collectibles, however, has not   waived its appeal as to
    
    the sufficiency of the evidence supporting the jury verdict that the
    
    notarized contract was invalid.      It objected, on the same grounds
    
    as it argues here, to the trial court’s interrogatory to the jury
    
    as to whether Ames and Bonner executed said contract.
    
                Texas law requires “clear and unmistakable proof that
    
    either the grantor did not appear before the notary or that the
    
    notary practiced some fraud or imposition upon the grantor ... to
    
    overcome the validity of a certificate of acknowledgment.”     Bell v.
    
    Sharif-Munir-Davidson Dev. Corp., 
    738 S.W.2d 326
    , 330 (Tex. Ct. App.
    
    1987); see also Stout v. Oliviera, 
    153 S.W.2d 590
     (Tex. Civ. App.
    
    1941).
    
                 Bonner’s daughter testified that the signature on the
    
    Recording Agreement was not her father’s.        Several documents in
    
    evidence showed Bonner’s signature and permitted the jury to draw
    
    their own conclusions as to the authenticity of the challenged
    
    signature.    The jury could reasonably have concluded from the
    
    evidence that Bonner did not appear before the notary and his
    
    signature    was   forged,   thus   overcoming   the   presumption   of
    
    authenticity that attaches to a notarized contract.       Because this
    
                                        17
    inference was reasonable, we affirm the jury’s verdict that the
    
    Recording Agreement between Bonner and Ames was invalid.
    
    D. Leonard Brown’s Copyright in “Ain’t Got Much”
    
               Appellants claim that because Leonard Brown’s wife wrote
    
    the song “Ain’t Got Much” and he failed to produce a written
    
    copyright assignment from her at trial, the district court erred in
    
    granting him a copyright in the song.
    
               Appellants never raised this particular objection to
    
    Brown’s copyright in “Ain’t Got Much” at trial.             To avoid being
    
    waived, an argument “must be raised to such a degree that the trial
    
    court may rule on it.”    In re Fairchild Aircraft Corp., 
    6 F.3d 1119
    ,
    
    1128 (5th Cir. 1993); see also Harris County, Tex. v. CarMax Auto
    
    Superstores, Inc., 
    177 F.3d 306
     (5th Cir. 1999); FDIC v. Mijalis,
    
    
    15 F.3d 1314
    , 1327 (5th Cir. 1994). In its April 2, 1997 motion for
    
    judgment, Collectibles (but not Ames) challenged Brown’s copyright
    
    on the grounds that his misrepresentation to the copyright office
    
    of   authorship   of   “Ain’t   Got   Much”   invalidated   his   copyright
    
    application for the entire collection it appeared in.         Collectibles
    
    did not, however, contend that Brown’s copyright in the song was
    
    invalid because he had not produced a written copyright assignment
    
    from his wife.    In fact, at no time did Collectibles or Ames raise
    
    that particular objection at trial.           Consequently, the district
    
    court never ruled on it.        As a result, appellants have waived the
    
    right to appeal on this ground.
    
    
                                          18
                                III. CONCLUSION
    
                The district court was correct in holding that plaintiffs’
    
    misappropriation claims were not preempted, that sufficient evidence
    
    supported   the   damages   verdict,   and   that   sufficient   evidence
    
    supported the jury’s determination that the Recording Agreement
    
    between Weldon Bonner and Roy Ames was invalid.            In addition,
    
    appellants waived their right to argue that, because Leonard Brown
    
    did not produce a written assignment from his wife, the district
    
    court erred in awarding him a copyright in “Ain’t Got Much.”
    
                AFFIRMED.
    
    
    
    
                                      19
    

Document Info

DocketNumber: 98-20736

Filed Date: 2/7/2000

Precedential Status: Precedential

Modified Date: 12/21/2014

Authorities (30)

Matthews v. Wozencraft , 15 F.3d 432 ( 1994 )

Daboub v. Gibbons , 42 F.3d 285 ( 1995 )

Ham Marine, Inc. v. Dresser Industries, Inc. , 72 F.3d 454 ( 1995 )

Hines v. Davidowitz , 312 U.S. 52 ( 1941 )

Goldstein v. California , 412 U.S. 546 ( 1973 )

Kewanee Oil Co. v. Bicron Corp. , 416 U.S. 470 ( 1974 )

Zacchini v. Scripps-Howard Broadcasting Co. , 433 U.S. 562 ( 1977 )

Silkwood v. Kerr-McGee Corp. , 464 U.S. 238 ( 1984 )

Bonito Boats, Inc. v. Thunder Craft Boats, Inc. , 489 U.S. 141 ( 1989 )

Howard C. Ford and Lorraine H. Ford v. United Gas ... , 254 F.2d 817 ( 1958 )

Herbert S. Zim v. Western Publishing Company , 573 F.2d 1318 ( 1978 )

Joseph Davis Farrar and Dale Lawson Farrar v. Clarence D. ... , 756 F.2d 1148 ( 1985 )

baltimore-orioles-inc-v-major-league-baseball-players-association-a , 805 F.2d 663 ( 1986 )

Gary Moore v. The Big Picture Company , 828 F.2d 270 ( 1987 )

Bette Midler v. Ford Motor Company, a Delaware Corporation, ... , 849 F.2d 460 ( 1988 )

Roy P. Benavidez v. Anheuser Busch, Inc. , 873 F.2d 102 ( 1989 )

Tom Waits v. Frito-Lay, Inc. Tracy-Locke, Inc. , 978 F.2d 1093 ( 1992 )

in-the-matter-of-fairchild-aircraft-corporation-debtor-butler-aviation , 6 F.3d 1119 ( 1993 )

Federal Deposit Insurance Corporation, in Its Corporate ... , 15 F.3d 1314 ( 1994 )

Ernest Mosley v. Excel Corporation , 109 F.3d 1006 ( 1997 )

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