Weinsteins Outfox Sam Moore, of ‘Soul Man’ Fame

     (CN) – Soul singer Sam Moore does not have a trademark case over the 2008 comedy “Soul Men,” starring Samuel L. Jackson and Bernie Mac, a federal judge ruled.
     In a 2009 federal complaint, Moore claimed that the Weinstein Co., its affiliate Dimension Films, MGM, Genius Products LLC and Concord Music Group had violated his publicity rights and trademarks. He also accused them of libel and unfair competition.
     Moore and Dave Prater were in the Memphis soul duo Sam & Dave, which rose to fame in the 1960s with chart-toppers like “Soul Man” and “Hold On, I’m Comin’.” Prater died in 1998 after a car accident.
     Moore claimed that the “Soul Men” movie, which was the final film for two of its stars, Mac and Isaac Hayes, tried to pass of its fictional music group The Real Deal as Sam & Dave. He said the lead character is portrayed as a misogynistic, gun-brandishing racist, and that viewers would now attribute those qualities to Moore.
     The Weinstein Co. argued, however, that the film was only a work of fiction. Though U.S. District Judge Aleta Trauger in Nashville, Tenn., refused to dismiss the case in 2010, she granted the defendants summary judgment last week.
     The experts Moore had proffered to bolster his claims did not impress Trauger, who noted that one of the so-called experts had not even reviewed the film before offering his opinion.
     Trauger also refused to discount Samuel L. Jackson’s testimony, which Moore had claimed was not credible. Jackson, who narrated a PBS special that included segments in which Sam & Dave performed, said he never viewed the final product. The actor also claimed that he had performed the song “Hold On I’m Comin'” in “Soul Men” from memory.
     The judge found that Jackson’s testimony about the PBS documentary was consistent with the actor’s “customary practice” of not watching shows he narrated. Moore failed to cite evidence that would undermine the credibility of Jackson’s testimony, the decision states.
     Moore’s trademark claims also failed with Trauger noting that neither the “Soul Men” movie nor soundtrack “explicitly reference” Sam & Dave. The duo is also never mentioned in the screenplay.
     “Although there are some broad stock similarities between the ‘Soul Men’ lead characters’ musical styles and fashion styles to those utilized, at times, by Sam & Dave and/or Sam Moore, the existence of those broad similarities – particularly in light of the clear and accurate attributions of the actual sources – does not even approach establishing that the movie and the soundtrack are explicitly misleading as to their content,” Trauger wrote.
     Even if “Soul Men” qualified as a trademark, it was “extremely weak” and at best “would be entitled to a minimum level of protection,” the 98-page opinion states.
     “Here, the defendants did not use the term ‘Soul Men’ for trademark purposes in the first place, nor did they sell any merchandise under the mark ‘soul men,’ aside from the movie and the soundtrack themselves,” Trauger wrote. “Moreover, there is simply no evidence from which a reasonable factfinder could conclude that the defendants, in creating and marketing the movie, its DVD, and the soundtrack, intended to infringe on Sam Moore’s alleged marks. To the contrary, the uncontroverted evidence demonstrates that the movie’s scriptwriters, producers, director, and actors created – and subjectively believed they were creating – a work of fiction.”
     On Moore’s false light of privacy claim, the judge found no evidence that the film was actually about Moore, much less intent of “actual malice” on the part of the filmmakers.
     “Although the evidence indicates that the movie’s scriptwriters and producers were generally aware of Sam & Dave and their history, that the producers incorporated a cover version of ‘Hold On I’m Comin” in the movie and considered utilizing another Sam & Dave song, and that a friend of Sam Moore’s and Sam Moore’s counsel separately wrote to TWC [The Weinstein Co.] to inform them of Sam Moore’s belief that publication of the movie might (in his opinion) violate Sam Moore’s rights, none of this evidence suggests that the defendants actually entertained serious doubts about the ‘truthfulness’ of the ‘Soul Men’ movie,” the judge wrote (parentheses in original).
     Trauger also threw out Moore’s right of publicity, unfair competition, unjust enrichment and conspiracy claims.

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