SEATTLE (CN) - Jimi Hendrix's heirs want the 9th Circuit to reinstate a $1.7 million award stemming from unauthorized use of the late singer's headshot logo and signature.
Authentic Hendrix and Experience Hendrix, run by Jimi's stepsister Janie Hendrix, sued Hendrix Licensing and Andrew Pitsicalis in 2009 for trademark infringement in a family feud over the Jimi Hendrix legacy. Jimi's brother Leon Hendrix is on Hendrix Licensing's board of directors.
Before the case went to trial, U.S. District Judge Thomas Zilly granted Hendrix Licensing and Pitsicalis partial summary judgment, striking down as unconstitutional portions of the Washington Personality Rights Act (WPRA). The act was revised in 2008 to provide that the property right in Washington to a "name, voice, signature, photograph or likeness" does not expire on the individual's death regardless of whether the individual had a connection to the state.
Zilly said the choice-of-law directive in the act "runs contrary to the traditional approach for resolving the testamentary or intestate disposition of personal property."
"To select, as the WPRA suggests, the law of a state to which the individual or personality is a stranger, constitutes no less random an act than blindly throwing darts at a map on the wall," he wrote.
In 2011 a jury awarded the Hendrix estate $1.7 million based on lost profits and injury to reputation or goodwill.
Zilly later concluded , however, that the verdict was the "product of speculation, error, and disregard of the court's instructions." He reduced the award to $60,000 and gave the estate $50,000 in attorneys' fees instead of the $500,000 requested.
The Hendrix estate argued before a three-judge panel last week that Zilly unreasonably took away the jury's damages and there was no standing for a decision that WPRA was unconstitutional.
Arguing for Authentic Hendrix and Experience Hendrix, attorney Michael Madden of Bennett Bigelow & Leedom said there was no WPRA controversy to provoke the lower court's ruling.
"We believe the District Court should not have reached the constitutionality of the act - there was no evidence of any imminent activity by the defendants that would be subject to a WPRA claim," Madden said.
Madden said the court granted an injunction against all the infringing activities before Zilly considered the constitutionality of the act.
"I'm arguing that there's no standing because there's no showing that as of the time of summary judgment that the defendants were engaged in or about to be engaged in any infringing activities," Madden said. "You need some facts."
Judge David Ebel countered that the facts show "Hendricks Licensing was selling products through Spencer Gifts and arguably those products were in violation of Experience Hendricks rights under WPRA."
Madden said that Zilly's ruling on the act "stirs up parasitic activity" designed to capitalize on Jimi Hendrix's image. He gave an example of a celebrity that "comes to stardom" in Seattle, but dies in a different state and said that the lower court's ruling would obliterate those personality rights.
"That is more arbitrary and unfair that what the district court was trying to prevent," he said.
Madden called the reduction of the jury award "most troubling" and said the District Court wrongly believed that the award represented gross instead of net profits.
Ebel countered that the lost revenue evidence presented by the Hendrix estate on damages was "very, very light." The estate also made "no effort to be precise about any of it," he added.
Thomas Osinski Jr., representing HendrixLicensing.com, said the jury failed to follow the court's instructions in assessing damages. He said the jury was required to present loss of "reputation" and "goodwill" as the same dollar amount, but came up with different numbers. He also said that those dollar amounts were based purely on "speculation."
Judge William Fletcher asked if Osinski disputed the estate's figures of lost revenue as lost profit.
"When the evidence was coming in did you challenge and say this is not net profit," Fletcher asked.
Osinski said there was no cross-examination, but "if the other side is self-immolating, get out of the way."
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