In August 2017, the District Court for the Southern District of New York enjoined Cleopatra Films from producing and distributing Street Survivor: The True Story of the Lynyrd Skynyrd Plane Crash. The film was going to tell the story of the 1977 airplane crash that killed Ronnie Van Zant and Steve Gaines – two members of the iconic band Lynyrd Skynyrd – and four others. The survivors had consented in 1987 to not capitalize on the Lynyrd Skynyrd name again. Cleopatra had consulted with Artimus Pyle, a former drummer of the band and survivor of the plane crash, for assistance with their film. In exchange for his assistance, Cleopatra agreed to grant Pyle 5% of the film’s net receipts, as well as a “Consultant” or “Co-Producer” credit. Consequently, Van Zant and Gaines’ heirs sued, claiming that Pyle had violated the 1987 agreement.
Cleopatra argued that the film would be a recounting of the events which wouldn’t represent any authorization from the band; moreover, they maintained that the film was an exercise of their First Amendment free speech rights. However, the court rejected these arguments. The district court held that because Pyle had violated the 1987 agreement, it was within the power of the court to “enjoin those acting in concert with him, not ‘to force non-parties to abide by the terms of that order,’ but ‘insofar as [it is] essential to the implementation of that order.” The case is now on appeal to the Second Circuit.
This decision has tremendous implications in recent times, as many critically acclaimed films and TV shows – such as FX’s The People v. O.J. Simpson, NBC’s Law & Order True Crime: The Menendez Murders, and HBO’s Confirmation – are dramatized depictions of historical events. Not surprisingly, some of Hollywood’s powerhouses, including HBO, NBCUniversal, and Paramount Pictures, have requested permission to file an amicus brief urging the Second Circuit to reverse the injunction. They are chiefly arguing that the injunction would “significantly chill the willingness of content creators to undertake the substantial research necessary to create high-quality films, television programs and documentaries that depict real people and events.” Various media non-profits have also written an amicus brief to the Second Circuit, arguing that the injunction would largely limit the reliance “on sources who may be contractually prohibited from speaking, such as through nondisclosure agreements, to report on matters of public concern.”
The district court should not have enjoined Cleopatra from going forward with the film. TV and film works are just as impactful as works in other media; not only do they often serve to entertain the public, but they more importantly also make the public aware of relevant historical events. Content creators and journalists cannot live in constant fear that the courts will order them to alter or distort their works – which is often extremely time-consuming and expensive to create, market, and distribute. Barriers designed to inhibit their creative liberty to produce the most truthful and engaging content for viewers and consumers ought to be eliminated.
If the Second Circuit were to uphold the injunction, people will simply be more hesitant to tell their stories. In this day and age, the public has the right to know about controversial events, incidents, and issues affecting society. People in media should not be penalized for disseminating truthful accounts to the public. If this injunction is upheld, it is possible that The New York Times would have not been able to expose the stories of the sexual harassment victims of Harvey Weinstein. The potential costs to content creators are offset by the benefits the public would receive from the exposure of controversial information. In this case, there is no “imminent public danger” that would arise from the inclusion of Pyle’s recounting of the events.
Content’s integrity would be significantly tarnished if injunctions were issued to restrain production and distribution of important works. Without Pyle, Cleopatra would be forced to take significant creative license in its depiction of the 1977 plane crash, providing the public with a distorted depiction of a significant historical event. If Cleopatra were not allowed to accurately depict the 1977 plane crash with the assistance of Pyle’s testimony, the public would be disserviced. In this situation, a better approach would be to potentially award Van Zant and Gaines’ heirs with monetary damages. This award should only be granted if the court determines that the film is reasonably demeaning and harmful to Van Zant’s and Gaines’ legacies.
In a society that values freedom of speech and freedom of the press, it is vital that we empower content creators to disseminate accurate, truthful quality work that has the ability to spark conversations and promote positive change. Only when this is accomplished should we divert our attention to finding appropriate resolutions to our disputes.
Christopher Borges is a J.D. candidate, 2019, at NYU School of Law.