NEW ORLEANS (CN) - Two native sons of New Orleans - Harry Connick Jr. and Branford Marsalis - say a Medicare provider is advertising itself by illegally using video of their benefit performance for a nonprofit they formed to benefit musicians hurt by Hurricane Katrina - and that People's Health Network did it despite being booted from the concert and told not to.
Connick, Marsalis and others formed the New Orleans Habitat Musicians Village after the devastating hurricane in August 2005.
Connick, a pianist and Sinatra-style singer, has sold more than 25 million albums, had a starring role in the TV production of "South Pacific," a recurring role on "Will and Grace" and will star in the Broadway revival of "On a Clear Day You Can See Forever," which opens this month.
"During his career, Connick has been extremely careful in lending his name to products or services and has chosen to endorse only a select few," the complaint states.
Marsalis, an internationally recognized saxophonist, composer and bandleader, co-starred in Spike Lee's movie "School Daze." His brothers Wynton, Delfeayo and Jason are also renowned musicians, as is their father, Ellis, a pianist, teacher and spiritual godfather to generations of New Orleans musicians.
"The Musicians Village is a New Orleans area Habitat for Humanity low income housing development which was built in New Orleans' Ninth Ward, an area that was particularly hard hit by Katrina. The centerpiece of the Musicians Village is the Ellis Marsalis Center for Music (the 'Center') which is operated by the NOHMV. The Center is comprised of a 170-seat performance hall and also contains meeting rooms, offices, classrooms, and practice rooms. On August 25, 2011, the Center was opened and the grand opening ceremony included performances by Connick and Marsalis," according to the complaint.
Connick and Marsalis say that before the show, defendant Peoples Health Inc. dba People's Health Network, a local Medicare healthcare provider, was denied permission to film the grand opening ceremony.
On the day of the show, "a representative of Peoples Health appeared with a video camera and was turned away from the premises. Sometime after August 25, 2011, defendant Peoples Health obtained a copy of the NOHMV Grand Opening Video and proceeded to use portions of that video in television commercials that were broadcast throughout Louisiana and in other promotional materials, including promotional materials that Peoples Health placed on the Internet," the complaint states.
"The portions of the Grand Opening Video that Peoples Health used in its commercials and other promotional materials clearly showed Connick and Marsalis performing at the grand opening. Neither Connick nor Marsalis authorized Peoples Health to use their likenesses or images in the commercials or promotional materials of Peoples Health. Neither Connick nor Marsalis has ever endorsed Peoples Health. ...
"By its unauthorized commercial use of Connick's and Marsalis' images and likenesses, Peoples Health has violated Connick's and Marsalis' right of publicity and misappropriated their identities for its commercial advantage."
The musicians say they "are entitled to recover damages, including but not limited to the reasonable market value of the use of their identities and likenesses, as a result of defendant's misappropriation and unauthorized use of their identities."
They seek an injunction and damages for trademark infringement and unjust enrichment.
They are represented in Federal Court by Stevan Dittman, with Gainsburgh, Benjamin, David, Meunier & Warshauer.