By Eriq Gardner
EXCLUSIVE: A federal judge in Tennessee has rejected a bid by the Weinstein Company to dismiss a lawsuit from Grammy-winning singer Sam Moore that contends the 2008 film "Soul Men" violated Moore's trademarks and rights of publicity.
The judge allowed Harvey and Bob Weinstein off the hook personally due to jurisdictional issues, but the surviving lawsuit against the studio could be important. The case could determine whether studios have a free speech right to make biographical movies about public figures without getting permission.
Sam Moore was part of the popular singing duo "Sam & Dave," which helped invent "Memphis Soul" through chart-topping singles like "Soul Man," released in 1967.
Moore alleges that in 2003, Harvey and Bob Weinstein became familiar with him while producing the documentary "Only the Strong Survive" about the 1960s soul era. A few years later, the Weinsteins began work on a new film, "Soul Men," starring Samuel L. Jackson and Bernie Mac. The picture portrays "fictional" soul singers with similar background and experiences as Sam & Dave. The main characters even sing Moore's songs.
Moore complained to the Weinsteins after reading the script because he was concerned about his reputation, considering that the main character uses racial slurs, swears, refers to woman as "bitches" and brandishes weapons. He was told he had no case
but was offered a cameo role, which Moore found to be insulting.
So he sued. In February 2009 he filed a lawsuit claiming his publicity rights were violated and that he held the trademark on "Soul Men."
Represented by Bert Fields, TWC claimed that the movie was a fictional comedy and, even if it was about the duo, it was a biographical work about public figures, protected by the First Amendment. TWC also said the the movie was an "expressive work" and even if Moore held trademark on "Soul Men," it had a First Amendment fair use right to use the title as long as it didn't mislead consumers.
In his decision on Wednesday, Judge Aleta Trauger rejected those arguments. The judge said the use of the "Soul Men" mark in a competing title may be shown to be confusing, claims of trademark dilution extend beyond pure commercial speech, and the defendants can't assume that a life story about a public figure is protected under the First Amendment.
Fields tells us he disagrees with the decision and that a trial will prove the movie wasn't Moore's story. He also believes an appeals court would rule in TWC's favor on the legal issues. "I think it's quite clear you can't protect the life story of a public figure this way," he says. "That's going too far."