(CN) – The 9th Circuit invoked The Beach Boys’ hit “California Girls” in dismissing founding member Mike Love’s lawsuit over a former bandmate’s promotional campaign in the United Kingdom. “Love wishes they all could be California torts,” Judge Sidney Thomas wrote.
The federal appeals court in Pasadena upheld a judge’s dismissal of the lawsuit, filed in California, over CDs and advertisements distributed by a British newspaper in the United Kingdom and Ireland.
The complaint raised the question of whether U.S. trademark law and California rights of publicity apply to ads that appeared in other countries.
Ruling that “such claims are not viable,” Thomas dismissed Love’s appeal.
Love had sued former bandmate Brian Wilson and a slew of companies involved in the release of a CD called “Good Vibrations,” featuring Wilson’s solo version of Beach Boys hits. The CD included two video live performances, and the album art contained photographs of the iconic group.
The ads and CDs were distributed with about 2.6 million newspapers in the United Kingdom and Ireland, and about 425 newspapers without CDs appeared in the United States, including 18 in California.
Love claimed the promotional campaign violated his right to use The Beach Boys’ trademark in live performances, which he acquired as part of an earlier settlement.
Love was apparently concerned that Wilson’s return to touring would decrease ticket sales for his own shows.
U.S. District Judge Audrey Collins ruled that English law does not recognize California’s publicity rights and dismissed the trademark claims for lack of standing, along with all related claims.
Collins also “strongly admonish[ed]” Love for claiming to be a California resident, when his first amended complaint stated that he lived in Nevada. She also sanctioned Love’s attorney for presenting the affidavit of a man who claimed to have bought “Good Vibrations” on eBay, thinking it was an official Beach Boys album. That man turned out to be a close associate of Love’s attorney.
In September 2007, Collins awarded attorney’s fees to eight defendants, including Sanctuary Records Group, the company that owned the rights to Wilson’s recordings.
The federal appeals court upheld all aspects of Collins’ rulings on the ground that the alleged infringement and violations occurred in another country.
“Under the circumstances presented in the case, we conclude that neither the Lanham Act (trademark law) nor California’s right of publicity apply extraterritorially,” Judge Thomas wrote for the three-judge panel. “The district did not err in awarding fees.”