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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK


RONNIE VAN ZANT, INC., GARY R. ROSSINGTON,
JOHNNY VAN ZANT, BARBARA HOUSTON, as the
Trustee of the ALLEN COLLINS TRUST, and ALICIA
RAPP and CORINNA GAINES BIEMILLER, as the
Personal Representatives of the Estate of STEVEN
GAINES,

Plaintiffs,

-against-

ARTIMUS PYLE (a/k/a THOMAS D. PYLE),
CLEOPATRA RECORDS, INC., JOHN DOE, JANE
DOE, XYZ CORPORATION, and XYZ LLC (the names
of the last four defendants being fictitious and unknown
to plaintiffs, and intended to designate persons or entities
that have or may have a role in the production and
distribution of the Motion Picture complained of in the
Complaint herein),

Defendants.




Case No: 17-cv-3360







CLEOPATRA'S PROPOSED FINDINGS OF FACT
AND CONCLUSIONS OF LAW


MANDEL BHANDARI LLP
Evan Mandel
Robert Glunt
80 Pine Street, 33rd Floor
New York, NY 10005
T: (212) 269-5600
F: (646) 964-6667

Attorneys for Defendants
Cleopatra Records, Inc. and Cleopatra Films
Case 1:17-cv-03360-RWS Document 50 Filed 07/24/17 Page 1 of 53
iiTABLE OF CONTENTS
PRELIMINARY STATEMENT .................................................................................................... 1
FINDINGS OF FACT..................................ခခခခခခခခခခခခ..................................................ခခခခခခခခခခခခ....... 4
Cleopatra and Its Motion Picture ........................................................................................ 4
Plaintiffs Learn about Cleopatra's Film and Decide Not To Sue ........................................ 7
The Film is Not a History of the Band .............................................................................. 10
The Consent Decree ..............................................................................................ခခခခခခခခခခခက 11
Plaintiffs' Violation of the Consent Decree ...................................................................... 12
Other Works about the Band ............................................................................................. 13
Plaintiffs' Failed Efforts To Produce a Film or Book ....................................................... 16
Plaintiffs' Latest Project ......................................................................................ခခခခခခခခခခခခ. 17
CONCLUSIONS OF LAW ..............................................................................................ခခခခခခခခခခခက 18
Requirements for a Permanent Injunction ........................................................................ 18
The First Amendment and the Rule Against Prior Restraint Preclude
Any Injunction ..................................................................................................ခခခခခခခခခခခခ... 18

Defendants Have Not Waived Their First Amendment Rights ........................................ 25
Laches Bars Any Injunction in this Case .......................................................................... 27
Unclean Hands Bars Any Injunction ................................................................................ 29
Artimus Pyle is Not Bound by the Consent Decree .......................................................... 31
Cleopatra is Not Bound by the Consent Decree ............................................................... 31
Cleopatra Did Not Violate the Consent Decree ................................................................ 34
The Lack of Irreparable Harm Precludes an Injunction .................................................... 36
Balancing Hardships Weights Against and Injunction ..................................................... 40
Plaintiffs' Claims Against Pyle Are Moot ......................................................................... 41
No Missing Witness Inference Is Warranted .................................................................... 42 Case 1:17-cv-03360-RWS Document 50 Filed 07/24/17 Page 2 of 53
iiiTABLE OF AUTHORITIES

Cases

ACLU of Illinois v. Alvarez,
679 F.3d 583 (7th Cir. 2012) ....................................................................................ခခခခခခခခခခခခ... 18
Aguilar v. Immigration & Customs Enf't Div. of the U.S. Dep't of Homeland Sec.,
811 F. Supp. 2d 803 (S.D.N.Y. 2011) ...................................................................................... 17
Alcatel USA, Inc. v. DGI Techs., Inc.,
166 F.3d 772 (5th Cir. 1999) ....................................................................................ခခခခခခခခခခခခ... 29
Alexander v. United States,
509 U.S. 544 (1993) .............................................................................................ခခခခခခခခခခခခ........ 19
Allens Creek/Corbetts Glen Pres. Grp., Inc. v. West,
2 F. App'x 162 (2d Cir. 2001) ...................................................................................ခခခခခခခခခခခခ... 28
Ass'n for Retarded Citizens of Connecticut, Inc. v. Thorne,
30 F.3d 367 (2d Cir. 1994) ................................................................................................. 31, 32
Beastie Boys v. Monster Energy Drinks,
87 F. Supp. 3d 672 (S.D.N.Y. 2015) ........................................................................................ 22
Bergenline Prop. Grp., LLC v. Coto,
Index No. A-0259-14T2, 2015 WL 7428755
(N.J. App. Div. Nov. 10, 2015) ..................................................................................ခခခခခခခခခခခခ.. 30
Burroughs v. Metro-Goldwyn Mayer, Inc.,
491 F. Supp. 1320 (S.D.N.Y.) ............................................................................................ 37, 39
Cameo Convalescent Ctr., Inc. v. Senn,
738 F.2d 836 (7th Cir. 1984) ....................................................................................ခခခခခခခခခခခခ... 42
Canada Dry Delaware Valley Bottling Co. v. Hornell Brewing Co., Inc.,
Case No. 11 Civ. 4308 (PGG), 2013 WL 5434623
(S.D.N.Y. Sept. 30, 2013) .......................................................................................ခခခခခခခခခခခခ..... 36
CBS, Inc. v. Davis,
510 U.S. 1315 (1994) ............................................................................................ခခခခခခခခခခခခ. 20, 23
Chirco v. Crosswinds Communities, Inc.,
474 F.3d 227 (6th Cir. 2007) ....................................................................................ခခခခခခခခခခခခ... 28
Church Mut. Ins. Co. v. Kleingardner,
2 Misc. 3d 676, 683, 774 N.Y.S.2d 265
(Sup. Ct. 2003) .................................................................................................ခခခခခခခခခခခခ............ 30 Case 1:17-cv-03360-RWS Document 50 Filed 07/24/17 Page 3 of 53
ivClonus Assocs. v. Dreamworks, LLC,
417 F. Supp. 2d 248 (S.D.N.Y. 2005) ...................................................................................... 39
Cobalt Multifamily Inv'rs I, LLC v. Shapiro,
Case No. 06 CIV. 6468 KMW MHD, 2013 WL 5418588
(S.D.N.Y. Sept. 27, 2013) .......................................................................................ခခခခခခခခခခခခ..... 31
Conopco, Inc. v. Campbell Soup Co.,
95 F.3d 187 (2d Cir. 1996) ................................................................................................. 26, 28
Consumers Union of United States, Inc. v. General Signal Corp.,
724 F.2d 1044 (2d Cir. 1983) ....................................................................................ခခခခခခခခခခခခ.. 39
Correction Officers Benev. Ass'n v. Kralik,
Case No. 04 CIV. 2199 (PGG), 2009 WL 856395
(S.D.N.Y. Mar. 26, 2009) ........................................................................................ခခခခခခခခခခခခ.... 41
Crosby v. Bradstreet & Co.,
312 F.2d 483 (2d Cir. 1963) ............................................................................................... 21, 40
CRP/Extell Parcel I, L.P. v. Cuomo,
394 Fed. Appx. 779 (2d Cir. 2010) ...............................................................................ခခခခခခခခခခခက 37
Dunn v. Carey,
808 F.2d 555 (7th Cir. 1986) ....................................................................................ခခခခခခခခခခခခ... 30
E.E.O.C. v. Recruit U.S.A., Inc.,
939 F.2d 746 (9th Cir. 1991) ....................................................................................ခခခခခခခခခခခခ... 29
Ellis v. Gallatin Steel Co.,
390 F.3d 461 (6th Cir. 2004) ....................................................................................ခခခခခခခခခခခခ... 36
Elrod v. Burns,
427 U.S. 347 (1976) .............................................................................................ခခခခခခခခခခခခ........ 40
Ex parte Wright,
443 So. 2d 40 (Ala. 1983) .......................................................................................ခခခခခခခခခခခခ..... 30
Ford Motor Co. v. Lane,
67 F. Supp. 2d 745 (E.D. Mich. 1999) ...................................................................................... 20
Haas v. Leo Feist, Inc.,
234 F. 105 (S.D.N.Y. 1916) ......................................................................................ခခခခခခခခခခခခ... 26
Hicks v. Casablanca Records,
464 F. Supp. 426 (S.D.N.Y. 1978) ........................................................................................... 18 Case 1:17-cv-03360-RWS Document 50 Filed 07/24/17 Page 4 of 53
vIn re United Pan-Europe Comms, N.V.,
Case Nos. 02–16020 (BRL), M–47(RWS), 2003 WL 221819
(S.D.N.Y. Jan. 30, 2003) ........................................................................................ခခခခခခခခခခခခ...... 38
Joseph Burstyn, Inc. v. Wilson,
343 U.S. 495 (1952) .............................................................................................ခခခခခခခခခခခခ........ 17
JSG Trading Corp. v. Tray–Wrap, Inc.,
917 F.2d 75 (2d Cir. 1990) ......................................................................................ခခခခခခခခခခခခ.... 36
Kamat v. Kurtha,
Case No. 05 CIV.10618 KMW THK, 2008 WL 5505880
(S.D.N.Y. Apr. 14, 2008) ........................................................................................ခခခခခခခခခခခခ..... 27
Keith v. Volpe,
118 F.3d 1386 (9th Cir. 1997) ...................................................................................ခခခခခခခခခခခခ.. 30
Lake James Community Volunteer Fire Dept., Inc. v. Burke,
149 F.3d 277 (4th Cir. 1998) ....................................................................................ခခခခခခခခခခခခ... 24
Latin Am. Music Co. v. Am. Soc. of Composers Authors & Publishers,
593 F.3d 95 (1st Cir. 2010) .....................................................................................ခခခခခခခခခခခခ..... 42
Legal Aid Soc'y v. City of N.Y.,
114 F. Supp. 2d 204 (S.D.N.Y. 2000) ...................................................................................... 24
Leonard v. Clark,
12 F.3d 885 (9th Cir. 1993) .....................................................................................ခခခခခခခခခခခခ.... 24
Madison Square Garden Boxing, Inc. v. Shavers,
562 F.2d 141 (2d Cir. 1977) .....................................................................................ခခခခခခခခခခခခ... 31
Marinaccio v. Boardman,
Case No. 1:02 CV 00831 NPM, 2005 WL 928631
(N.D.N.Y. Apr. 19, 2005) ................................................................................................... 24, 25
Martin v. Wilks,
490 U.S. 755 (1989) .............................................................................................ခခခခခခခခခခခခ........ 31
Matter of Providence Journal Co.,
820 F.2d 1342 (1st Cir. 1986) ................................................................................. 19, 21, 23, 40
Metro. Opera Ass'n, Inc. v. Local 100, Hotel Employees and Rest. Employees Int'l Union,
239 F.3d 172 (2d Cir. 2001) ......................................................................................... 19, 22, 24
Monster Comms., Inc. v. Turner Broadcasting Sys., Inc.,
935 F. Supp. 490 (S.D.N.Y. 1996) ........................................................................................... 40 Case 1:17-cv-03360-RWS Document 50 Filed 07/24/17 Page 5 of 53
viMotorola Credit Corp. v. Uzan,
561 F.3d 123 (2d Cir. 2009) ............................................................................................... 28, 29
N.Y. Progress & Prot. PAC v. Walsh,
733 F.3d 483 (2d Cir. 2013) .....................................................................................ခခခခခခခခခခခခ... 40
N.Y. Times Co. v. United States,
403 U.S. 713 (1971) ................................................................................................ 20, 21, 23, 40
Nat'l Football League Players Ass'n v. Nat'l Football League Props., Inc.,
Case No. 90 Civ. 4244 (MJL), 1991 WL 79325
(S.D.N.Y. May 7, 1991) ..........................................................................................ခခခခခခခခခခခခ..... 38
Near v. State of Minnesota ex rel. Olson,
283 U.S. 697 (1931) .............................................................................................ခခခခခခခခခခခခ........ 22
Nebraska Press Ass'n v. Stuart,
427 U.S. 539 (1976) .............................................................................................ခခခခခခခခခခခခ........ 19
New Era Publications International, ApS v. Henry Holt and Company, Inc.,
873 F.2d 576 (2d Cir. 1989) .....................................................................................ခခခခခခခခခခခခ... 27
New Kids on the Block v. News Am. Pub., Inc.,
971 F.2d 302 (9th Cir. 1992) ....................................................................................ခခခခခခခခခခခခ... 23
Nihon Keizai Shimbun, Inc. v. Comline Bus. Data, Inc.,
166 F.3d 65 (2d Cir. 1999) ......................................................................................ခခခခခခခခခခခခ.... 23
Novalogic, Inc. v. Activision Blizzard,
41 F. Supp. 3d 885 (C.D. Cal. 2013) ........................................................................................ 26
O&L Assocs. v. Del Conte,
601 F. Supp. 1463 (S.D.N.Y. 1985) ......................................................................................... 33
Odom v. Senkowski,
Case No. 96-CV-554, 1997 WL 458450,
(N.D.N.Y. Aug. 7, 1997) .........................................................................................ခခခခခခခခခခခခ.... 41
Perkins v. City of Chicago Heights,
47 F.3d 212 (7th Cir. 1995) .....................................................................................ခခခခခခခခခခခခ.... 30
Precision Instrument Mfg. Co. v. Auto. Maint. Mach. Co.,
324 U.S. 806 (1945) .............................................................................................ခခခခခခခခခခခခ........ 29
Procter & Gamble Co. v. Bankers Trust Co.,
78 F.3d 219 (6th Cir. 1996) ............................................................................................... passim Case 1:17-cv-03360-RWS Document 50 Filed 07/24/17 Page 6 of 53
viiRetail Credit Co. v. Russell,
218 S.E.2d 54 (Ga. 1975) ........................................................................................ခခခခခခခခခခခခ.... 22
Rex Medical L.P. v. Angiotech Pharmaceuticals (US), Inc.,
754 F. Supp. 2d 616 (S.D.N.Y. 2010) ...................................................................................... 38
Roach v. Morse,
440 F.3d 53 (2d Cir. 2006) ................................................................................................. 17, 35
Rodriguez v. Walker,
Case No. 97 CIV. 2823 KTD, 1999 WL 61834
(S.D.N.Y. Feb. 9, 1999) .........................................................................................ခခခခခခခခခခခခ...... 42
Rudd Equip. Co., Inc. v. John Deere Constr. & Forestry Co.,
834 F.3d 589 (6th Cir. 2016) ....................................................................................ခခခခခခခခခခခခ... 26
S.E.C. v. Platinum Inv. Corp.,
98 F. App'x 33 (2d Cir. 2004) ...................................................................................ခခခခခခခခခခခခ... 33
Saint Laurie Ltd. v. Yves Laurent Am., Inc.,
Case No. 13-CV-6857 (DAB), 2015 WL 12991205
(S.D.N.Y. Mar. 27, 2015) ........................................................................................ခခခခခခခခခခခခ.... 36
Saratoga Vichy Spring Co. v. Lehman,
625 F.2d 1037 (2d Cir. 1980) ....................................................................................ခခခခခခခခခခခခ.. 26
Schad v. Borough of Mt. Ephraim,
452 U.S. 61 (1981) ..............................................................................................ခခခခခခခခခခခခ......... 18
Scripps-Howard Broad. Co. v. Regency Elecs., Inc.,
765 F.2d 146 (6th Cir. 1985) ....................................................................................ခခခခခခခခခခခခ... 42
SEC v. Haligiannis,
608 F. Supp. 2d 444 (S.D.N.Y. 2009) ...................................................................................... 33
Southeastern Promotions, Ltd. v. Conrad,
420 U.S. 546 (1975) .............................................................................................ခခခခခခခခခခခခ........ 18
Stokely-Van Camp, Inc. v. Coca-Cola Co.,
646 F. Supp. 2d 510 (S.D.N.Y. 2009) ...................................................................................... 29
Superior Films, Inc. v. Dep't of Educ. of State of Ohio, Div. of Film Censorship,
346 U.S. 587 (1954) .............................................................................................ခခခခခခခခခခခခ........ 17
Tiffany (NJ) Inc. v. eBay Inc.,
600 F.3d 93 (2d Cir. 2010) ................................................................................................. 23, 34 Case 1:17-cv-03360-RWS Document 50 Filed 07/24/17 Page 7 of 53
viiiTom Doherty Assocs., Inc. v. Saban Entm't, Inc.,
60 F.3d 27 (2d Cir. 1995) .......................................................................................ခခခခခခခခခခခခ..... 36
United States v. Caccia,
122 F.3d 136 (2d Cir. 1997) .....................................................................................ခခခခခခခခခခခခ... 43
United States v. City of N.Y.,
198 F.3d 360 (2d Cir. 1999) .....................................................................................ခခခခခခခခခခခခ... 31
United States v. Gaskin,
364 F.3d 438 (2d Cir. 2004) .....................................................................................ခခခခခခခခခခခခ... 43
United States v. Int'l Broth. Of Teamsters,
266 F.3d 45 (2d Cir. 2001) ......................................................................................ခခခခခခခခခခခခ.... 32
United States v. Mittelstaedt,
31 F.3d 1208 (2d Cir. 1994) .....................................................................................ခခခခခခခခခခခခ... 42
Velez v. Novartis Pharm. Corp.,
Case No. 04 CIV. 9194 CM, 2010 WL 11043081
(S.D.N.Y. Feb. 25, 2010) ........................................................................................ခခခခခခခခခခခခ..... 42
Watford v. Scully,
Case No. 88 CIV. 8372 (RWS), 1989 WL 58062
(S.D.N.Y. May 24, 1989) .........................................................................................ခခခခခခခခခခခခ.... 41
West v. West,
825 F. Supp. 1033 (N.D. Ga. 1992) .......................................................................................... 29
Williams v. Arctic Cat, Inc.,
Case No. 3:11-CV-445, 2014 WL 1028476
(N.D.N.Y. Mar. 13, 2014) ........................................................................................ခခခခခခခခခခခခ.... 42
Worldwide Diamond Trademarks, Ltd. v. Blue Nile, Inc.,
Case No. 14-CV-3521 (VSB), 2014 WL 7933941
(S.D.N.Y. Nov. 6, 2014) .........................................................................................ခခခခခခခခခခခက 36, 38
Rules

Fed. R. Civ. P. 65(d) ...........................................................................................ခခခခခခခခခခခခ............. 33
Case 1:17-cv-03360-RWS Document 50 Filed 07/24/17 Page 8 of 53
ixTABLE OF ABBREVIATIONS

Abbreviation Item
Cleopatra Defendants Cleopatra Records and Cleopatra
Films
Cohn Designations of the Deposition of Jared Cohn
Dated June 26, 2017
DX Cleopatra's Trial Exhibits
PX Plaintiffs' Trial Exhibits
Pyle Designations of the Deposition of Artimus Pyle
Dated June 20, 2017
TR Trial Transcript Case 1:17-cv-03360-RWS Document 50 Filed 07/24/17 Page 9 of 53
PRELIMINARY STATEMENT
Plaintiff seek only one thing in this case: an injunction prohibiting Cleopatra from
publishing its film about a plane crash that involved the band Lynyrd Skynyrd. This is Plaintiffs'
third attempt to obtain this relief. Plaintiffs first sought a TRO, and Judge McMahon denied it.
Plaintiffs then sought a Preliminary Injunction, and this Court denied it. Plaintiffs' third bite at
the apple is no more meritorious than its first two. Plaintiffs' sole claim for an injunction fails for
the following seven reasons:
First, Cleopatra has a constitutional right to publish its film. It is beyond serious dispute
that the Constitution protects free expression for purposes both academic and commercial, and
whether embodied in speech, writing, or filmmaking. And at the heart of First Amendment
jurisprudence is the longstanding rule against prior restraints. There is no "acting in concert"
exception to the First Amendment or the rule against prior restraints and no authority upholding
a prior restraint in a case bearing even a passing resemblance to this one. While Plaintiffs
attempt to argue waiver, they cannot locate a single case in which a party waived its First
Amendment rights simply by acting in concert with someone else.
Second, Plaintiffs' claims are barred by laches. In July 2016, Plaintiffs sent Cleopatra a
cease and desist letter, to which Cleopatra responded by advising Plaintiffs that it had a First
Amendment right to make a film. Plaintiffs freely admit that, in August 2016, Cleopatra told
them that it was making the film. Despite this, Plaintiffs waited almost a year to bring this
action. In the interim, Cleopatra spent over $1 million making its film. The facts of this case are
virtually identical to those that the Second Circuit held "mandated" a finding of laches in New
Era Publications Int'l, ApS v. Henry Holt & Co., 873 F.2d 576 (2d Cir. 1989). Case 1:17-cv-03360-RWS Document 50 Filed 07/24/17 Page 10 of 53
2Third, Plaintiffs will not suffer any harm, let alone irreparable harm. Plaintiffs admit that
movies about the band increase record sales and ticket sales. Plaintiffs have been trying and
failing to make a movie for thirty years, and they were a lot closer to making a film two decades
ago than they are today. They're never going to make a film; and, even if they do, it would be
the seventh film about Lynyrd Skynyrd, which is no different from being the sixth film about the
band. Plaintiffs freely admit that they have been violating the Consent Decree provisions
requiring that the date follow the band's name and that certain musicians participate in each
performance and recording precisely because the Plaintiffs are no longer concerned with
consumer confusion. Thus, consumer confusion is not a basis for issuing an injunction. Finally,
Plaintiffs admit that they hope to include Artimus Pyle in their own film, conclusively proving
that Plaintiffs will not suffer any reputational harm with Pyle being associated with the band or
Cleopatra's film. The undisputed facts preclude any showing of harm, let alone irreparable harm.
Cleopatra respectfully submits that the Court need proceed no further than these first
three defects in Plaintiffs' claim. However, Plaintiffs' claims fail for four other reasons:
Fourth, Plaintiffs have repeatedly and brazenly violated the very order that they now
seek to enforce. Three provisions in the Consent Decree are designed to protect the integrity of
the band – a requirement that the year follow the band's name, a requirement that the band
perform only if certain enumerated musicians participate, and limitations on who can make a
film or book or otherwise exploit the history of the band. Plaintiffs admit that they have been
violating the first two provisions for decades. Plaintiffs have also failed to pay the royalties that
are required by the Consent Decree. As a result, Plaintiffs' unclean hands prevents them from
obtaining the injunction they seek. Case 1:17-cv-03360-RWS Document 50 Filed 07/24/17 Page 11 of 53
3Fifth, the only basis for Plaintiffs' permanent injunction is a 1988 Consent Decree that
Cleopatra never signed. The Consent Decree was issued in a case in which Cleopatra was not a
party and had no opportunity to appear, a case seeking to enforce a "blood oath" that Cleopatra
never swore. Cleopatra never agreed to the deal that Plaintiffs want the Court to enforce and
never surrendered the rights that Plaintiffs would have the Court strip away. Cleopatra is not
bound by the Consent Decree and cannot be held it its terms.
Sixth, Cleopatra has not violated the Decree. It is settled law that a party cannot violate
an order until they have notice of it, which did not happen until late July 2016. There is zero
evidence that Cleopatra did anything after late July 2016 other than obtain basic background
information from Pyle. And even Plaintiffs do not claim that obtaining information from Pyle
violates the Decree, which does not constitute "acting in concert" with Pyle. Instead, Plaintiffs
attempt to muddy the water by citing pre-July 2016 conduct. But this Court cannot punish
Cleopatra for violating an order that it had not received, indeed an order that Plaintiffs insisted be
kept secret under seal.
Seventh, Artimus Pyle, the party with whom Cleopatra allegedly "acted in concert," did
not assent to the Consent Decree, signing the document only "under protest." As a consequence,
neither he nor Cleopatra can be held to its terms.
Finally, the claim for an injunction against Pyle is moot since it is undisputed that he
does not have access to Cleopatra's film or the legal or physical ability to exhibit or distribute the
film.
Cleopatra renews its motion for summary judgment and its motion for judgment as a
matter of law. Under any reading of the facts, Plaintiffs' request for an injunction fails as a
matter of law. Case 1:17-cv-03360-RWS Document 50 Filed 07/24/17 Page 12 of 53
4FINDINGS OF FACT
Cleopatra and Its Motion Picture
1. Defendant Cleopatra Records ("Cleopatra") is a Los Angeles based Independent
Recording Label. TR 115:4-19.
2. In addition to producing music, Cleopatra also makes and distributes films about
musical groups, musicians, and events that have historical importance in rock and roll history.
TR 116:25-118:4.
3. For three years, Cleopatra has been interested in making a film about the 1977
plane crash the killed many of the original members of Lynyrd Skynyrd. TR 118:25-119:12.
4. Lynyrd Skynyrd is a famous American band that helped to popularize the
"Southern Rock" genre during the 1970s. Known for hits like "Sweet Home Alabama" and "Free
Bird," the band toured all over the world, and released multiple platinum records. TR 10:2-15.
5. In early 2016, Cleopatra decided to move forward with a feature length film based
on the 1977 crash. TR 119:1-20.
6. Cleopatra engaged Jared Cohn, a director and screenwriter, to write and direct the
film. DX 805; TR 131:8-132:3.
7. In the interests of historical accuracy, Cleopatra also contacted Artimus Pyle, one
of the band members who survived the crash. Pyle is one of only a few living eyewitnesses to
the plane crash itself. TR 121:6-14.
8. At Cleopatra's request, Pyle indicated that he would be willing to provide
information about the events. DX 9; TR 123:4-125:9.
9. In exchange, Cleopatra provided Pyle with a contract entitling him to 5% of the
film's profits and a credit as a "consultant" or "co-producer." DX 9. Case 1:17-cv-03360-RWS Document 50 Filed 07/24/17 Page 13 of 53
510. Pyle was hired to be a "historical consultant," i.e. to provide information about his
experience in the plane crash. TR 127:4-8; 139:2-6.
11. In addition to his work as a historical consultant, Pyle was to make a cameo
appearance in the film. DX 9.
12. Other than expressing an interest in having some of his original music appear in
the film, Pyle made no effort to negotiate the terms of his contract with Cleopatra. TR 130:13-
15; 201:8-10.
13. In June 2016, Pyle traveled to Los Angeles. TR 142:19-22.
14. During the June 2016 trip, Cohn interviewed Pyle for 11 hours, hoping to
document as much information as possible about the crash. Cohn 42:24-43:16; TR 142:23-
143:6.
15. The entire interview was videotaped by Cohn, and the resulting video was
produced in this case. TR 143:3-9.
16. Originally, Cleopatra did not know what role Pyle would play and thought that he
might assist with the writing of the script. TR 127:9-16.
17. However, Pyle's service as a writer quickly proved impossible. TR 138:9-10;
139:9-10.
18. Pyle has never in his life used a computer. Pyle 45:18-46:7.
19. Cohn wrote seventeen drafts of the script. DX 301-317.
20. Although Pyle was sent hard copies of one or two drafts of the script, he did not
read them. Pyle 85:25-86:10; Cohn 61:13-24, 74:17-75:12.
21. Cohn attempted to discuss the script with Pyle, but Pyle's responses were
incoherent. Cohn 75:25-78:10. Case 1:17-cv-03360-RWS Document 50 Filed 07/24/17 Page 14 of 53
622. When Cohn attempted to ask specific questions, Pyle frequently launched into an
unrelated tangent. Cohn 75:25-78:10.
23. Pyle never understood his role on the film to be that of a writer. Pyle 23:1-6.
24. Pyle did not "write any part of the script." TR 139:9-10; Pyle 88:19-21; Cohn
40:13-15.
25. Pyle provided Cleopatra with historical information concerning the 1977 crash.
TR 139:2-6.
26. After the Los Angeles interview, Cohn regularly asked Pyle follow-up questions
by phone in order to obtain details about the plane crash, such as the type of clothing worn, the
brands of beverages consumed, and mannerisms of people involved in the crash, and his and
others' diction. Cohn 43:17-44:25.
27. Pyle provided similar information to the costume designer and the actors. Cohn
48:11-25, 58:12-59:8.
28. While Pyle also viewed some of the casting videos, Pyle's reaction was not taken
into account when Cohn made the casting decisions. Cohn 49:14-51:5.
29. Extensive documentary evidence confirms that Pyle's role on the film was to
provide historical information about events, statements, diction, clothing, and mannerisms. DX
401-412; PX 15-47.
30. Pyle has had no control over how the film was made, its content or its final cut.
TR 146:13-147:11.
31. Pyle does not have a copy of the film and has no control over whether it is
released, distributed, or otherwise exhibited. TR 147:15-25. Case 1:17-cv-03360-RWS Document 50 Filed 07/24/17 Page 15 of 53
732. Pyle was not Cohn's sole source of information for the film. TR 188:4-12; Cohn
32:2-15; 91:23-94:8.
33. Cohn obtained all of the information that he could about the plane crash, from
books, films, articles, interviews conducted by third-parties, and websites. TR 188:4-12; Cohn
32:2-15; 91:23-94:8.
34. Although Cohn exhaustively researched the history of the plane crash, he is the
sole author of the script for the film. Cohn 8:22-9:20.
Plaintiffs Learn about Cleopatra's Film and Decide Not To Sue
35. In June 2016, a number of entertainment publications wrote stories about the fact
that Pyle was working with Cleopatra on a film about the Lynyrd Skynyrd plane crash. DX 55 at
CLEO00165-73.
36. In July 15, 2016, Plaintiffs sent a Cease and Desist letter to Cleopatra. DX 1.
37. The Cease and Desist Letter said that Cleopatra's film violated the Consent
Decree:
[Cleopatra's film] is about the Band and its history, which is not
permitted under the Consent Decree and has not been authorized
by the parties…. Moreover, the use of the 'Free Bird' title
practically screams the intent to promote and market the Motion
picture as the story of the Band. The use of this title is wrongful
and deceptive, especially within the sated context of the Motion
Picture and would be in violation of the Consent Decree; this
Motion Picture would violate the Consent Decree even if it was
simply titled 'The Artimus Pyle Story…. Please be advised as
follows: (i) you are not authorized to make a film which either
purports to be or is about the history of the Band, in whole or in
part….

DX 1.
38. Further, in the Cease and Desist Letter, Plaintiffs advised Cleopatra that they
would sue if Cleopatra did not confirm in writing that it was ceasing its production of the film: Case 1:17-cv-03360-RWS Document 50 Filed 07/24/17 Page 16 of 53
8We hereby demand that you immediately cease and desist from
production of the Motion Picture and that you confirm to
[Plaintiffs] in writing promptly that you will do so. If you do not
accede to this demand, please be advised that our clients have
instructed us to take any and all action which we deem necessary
to protect and enforce their rights to the fullest extent of the law,
including without limitation, the institution of litigation.
Id.
39. Cleopatra requested the Plaintiffs provide an actual copy of the Consent Decree
described in their letter. DX 2, 3, and 8.
40. Cleopatra had never been party to the original lawsuit between Plaintiffs and Pyle
and had never agreed to be bound by the Consent De怅倄耄老က 。瀃뀀、䀁老 TR 47:20-48:3.
41. Prior to July of 2016, Cleopatra had never seen a copy of the Consent Decree.
TR 128:20-129:2.
42. Cleopatra had not seen the Consent Decree prior to signing its contract with Pyle
and interviewing him concerning the 1977 plane crash. TR 128:20-129:2.
43. The Consent Decree was placed under seal after it was signed and was not
publicly available. DX 15.
44. Perera and Cohn reviewed the Decree together and concluded that Plaintiffs
themselves were obviously in violation of it. Cohn 17:6-25, 20:5-23.
45. Pyle believed that the Consent Decree was no longer operative because Plaintiffs
had been ignoring it for years. Pyle 64:3-25.
46. On July 21, 2016, Cleopatra rejected Plaintiffs' demand that it immediately
confirm that it had ceased working on the project. DX 3.
47. Cleopatra's counsel specifically told Plaintiffs' counsel that it had a constitutional
right to make the film, writing: "In any event, Cleopatra Films is not subject to any agreement Case 1:17-cv-03360-RWS Document 50 Filed 07/24/17 Page 17 of 53
9with your clients. It has a First Amendment right to produce and distribute a dramatic film
depicting, describing, and/or based upon true, historical events, as it sees fit." DX 3.
48. In their failed attempt to obtain a temporary restraining order and preliminary
injunction, Judith Van Zant ("Van Zant"), President of Plaintiff Ronald Van Zant, Inc., and
Plaintiff Gary Rossington ("Rossington") testified that, after sending the Consent Decree, "we
heard nothing further from Defendants." PX 21 ¶ 30. Plaintiffs have subsequently admitted that
this testimony was false.
49. On August 5, 2016, Jared Cohn, the director of Cleopatra's film, messaged Van
Zant to inquire as to whether she wanted to participate in the film. DX 54; TR 31:2-7; 62:21-
63:16; 134:25-135:20.
50. Van Zant appeared to have no objection to the film, simply asking for more
information about the film and how she could be involved. DX 54.
51. On the advice of Cleopatra's counsel, Evan Cohen, Perera and Cohn ceased
having direct communications with the Plaintiffs. TR 135:24-136:4.
52. Around this time, Pyle reached out to Plaintiffs about the film in the hope that
they would participate in it. Pyle 22:5-23, 65:24-66:21.
53. At this time, Cleopatra also reached out to Plaintiffs' management company,
Vector Management, to see if they wanted to participate in the film. TR 136:5-137:19.
54. Cleopatra took actions to minimize additional involvement with Pyle after
receiving a copy of the Consent Decree. TR 137:20-138:20.
55. Since Cleopatra received the Consent Decree in July 2016, Cleopatra has not
described Pyle as being a writer, producer, or director of the film. DX 60; TR 141:16-25. Case 1:17-cv-03360-RWS Document 50 Filed 07/24/17 Page 18 of 53
1056. A link to a pre-Cease and Desist Letter Rolling Stone article was included in one
of Cohn's social media communications by Cohn's "virtual assistant," without Cohn's or
Cleopatra's knowledge. Cohn 122:4-123:25.
57. Cleopatra significantly modified Pyle's agreement after Plaintiffs' Cease and
Desist Letter was sent. DX 5.
58. Under the new agreement, Pyle will not be credited as being the producer,
director, or writer when the film is released. And instead of receiving 5% of the film's profits,
Pyle will receive only $2,500 for his work on the film. DX 5.
59. The movie began filming on April 24, 2017. Cohn 13:25-14:3.
60. Principal photography was completed on May 15, 2017. Cohn 23:12-13.
61. Cleopatra has invested over $1.2 million in producing the film. DX 13; TR
145:20-146:6.
The Film is Not a History of the Band
62. Lynyrd Skynyrd was founded around 1970. TR 69:22-2瀁က
63. Artimus Pyle was not a founding member of the Lynyrd Skynyrd and did not join
until 1975. TR 70:2-6.
64. Cleopatra's film does not depict the founding of the band or events prior to Pyle's
joining of the band. TR 71:4-6; see also, generally DX 6.
65. The entire film is told from Pyle's perspective, as he is the main character.
DX 401; Cohn 141:11-18; TR 140:2-10; 143:15-16; see also, generally DX 6.
66. The entire film takes place during the week of the 1977 plane crash. TR 133:13-
14; 153:18-154:2; Cohn 96:5-8; see also, generally DX 6. Case 1:17-cv-03360-RWS Document 50 Filed 07/24/17 Page 19 of 53
1167. The film does not depict the forty years of Lynyrd Skynyrd history after the 1977
plane crash. TR 72:13-15; see also, generally DX 6.
68. Cleopatra intends to place cards in the opening credits of the film that make clear
that it was not authorized by Lynyrd Skynyrd, or a"စ쀀〄怅者倅倄者စ瀀々 " former member of Lynyrd
Skynyrd. TR 146:7-12.
69. The film will not use recordings of the music of Lynyrd Skynyrd or any songs
written by the band.
The Consent Decree
70. The Consent Decree arises out of a prior litigation (the "1988 Action") to which
Cleopatra was not a party. DX 15; TR 47:20-48:3.
71. The 1988 Action sought to enjoin the surviving members of Lynyrd Skynyrd from
using the band's name in performance. TR 16:7-17:4.
72. The Consent Decree placed three limitations on the use of the band name Lynyrd
Skynyrd ("LS"). DX 15.
73. First, the post-crash band was permitted to use LS only if it placed the calendar
year after the band's name, e.g. "Lynyrd Skynyrd 1989" (hereinafter, the "Date Requirement").
In order to comply with the Decree, "[t]he calendar year shall not be included in parentheses and
shall be of a size, type, and prominence equal in all respects to the words 'Lynyrd Skynyrd.'"
DX. 15, §2(a).; TR 24:12-19.
74. The purpose of the Date Requirement was to protect the band's "integrity" and to
ensure fans did not confuse the pre-crash band and the post-crash band. TR 24:12-19; 48:21-24.
75. Second, the Consent Decree required certain enumerated musicians to participate
in live performances and recordings in order for LS to be used. DX 15, § 2(c); TR 49:15-18. Case 1:17-cv-03360-RWS Document 50 Filed 07/24/17 Page 20 of 53
1276. Specifically, the Decree required either (1) Gary Rossington and Allen Collins to
appear for substantially the entire performance or (2) if and only if Rossington or Collins
consented to not participating or were dead or incapacitated, then Rossington or Collins plus two
of the following four musicians must participate: Pyle; Leon Wilkeson; William Powell; and
Edward King. DX 15, § 2(c); TR 49:19-50:2.
77. Collins was seriously injured around the time of the execution of the Consent
Decree, which meant that three of the enumerated musicians (Rossington plus two others) had to
perform in order to use LS. Thus, this requirement became known as the "Rule of Three." Pyle
62:14-63:3; TR 50:4-16.
78. The purpose of the Rule of Three was to protect the integrity of the band. TR
50:21-51:2.
79. The Rule of Three prohibits LS from being used onc耀〄䀀々怅耄逄逄쀄怄쀄者t number of the
enumerated musicians have become unable to perform, quit, or died. At the time the Consent
Decree was signed, Plaintiffs understood that the Decree limited the life of the band. TR 50:17-
20.
80. Third, the Decree prohibited the defendants in the 1988 Action from exploiting
the history of the band without the approval of Rossington, Collins, and Ronnie's Estate. DX 15,
§ 4.
Plaintiffs' Violation of the Consent Decree
81. Shortly after Plaintiffs executed the Consent Decree, they began to violate it in
essentially every respect.
82. Plaintiffs have not complied with Date Requirement for decades and have been
using LS without a date designator continuously since 1992. TR 48:25-49:5. Case 1:17-cv-03360-RWS Document 50 Filed 07/24/17 Page 21 of 53
1383. Judith Van Zant agreed not to sue the band for making this change in exchange
for more money from the band's performances. DX 42; TR 54:3-56:17.
84. Since at least the 1990s, Plaintiffs have been violating the Rule of Three. DX 46;
TR 51:3-8.
85. Plaintiffs expelled Ed King from the band even though his absence would make
compliance with the Rule of Three difficult or impossible. TR 52:5-13.
86. Plaintiffs have not paid royalties pursuant to the formulas set forth in the Decree,
and have, on occasion, shortchanged Pyle, King, and even Van Zant. DX 59, 502; Pyle 104:18-
105:16; TR 53:19-54:2.
87. The parties to the Consent Decree never executed an agreement modifying it, and
no one ever sought a modification from the Court. DX 40; TR 49:6-14.
Other Works about the Band
88. In the decades since the Consent Decree was issued, dozens of films, books,
television shows and radio programs have been made about the Lynyrd Skynyrd. Numerous
band members have participated in these projects without any complaint by Plaintiffs.
89. Films about Lynyrd Skynyrd and its history, include Lynyrd Skynyrd: Uncivil War
(2002), a VH1 film written and narrated by Jake Tapper; Sweet Home Alabama: The Southern
Rock Saga (2012), by the BBC; and Gone With the Wind: The Remarkable Rise and Tragic Fall
of Lynyrd Skynyrd (2015), which is nearly three hours long. TR 78:3-21.
90. VH1's Uncivil War included part of the history of the band, and interviewed Pyle
and other band members to obtain it. TR 76:7-10.
91. Uncivil War did not violate the Consent Decree because no band member had
creative control over the finished product. DX 23; TR 76:7-10. Case 1:17-cv-03360-RWS Document 50 Filed 07/24/17 Page 22 of 53
1492. Plaintiffs did not object to Pyle's participation in Uncivil War. TR 75:2-16.
93. Plaintiffs have not even bothered to watch Sweet Home Alabama: The Southern
Rock Saga by the BBC or Gone with the Wind: The Remarkable Rise and Tragic Fall of Lynyrd
Skynyrd by the Country Music Channel. TR 78:3-21.
94. Films or television shows about Lynyrd Skynyrd enhance ticket sales and
revenues to Plaintiffs. TR 78:22-79:18.
95. Books written about the band, and the fateful plane crash, include Whiskey Bottles
and Brand-New Cars: The Fast Life and Sudden Death of Lynyrd Skynyrd by Mark Ribowsky
(2015); Turn It Up! My Years with Lynyrd Skynyrd: Love, Life, and Death, Southern Style by
Lynyrd Skynyrd tour manager and plane crash survivor Ron Eckerman (2011); The Last Tour:
Love, Laughter, and Tears: In Memory of Ron Eckerman by Carolyn Day (2014); and Lynyrd
Skynyrd: Remembering the Free Birds of Southern Rock by Gene Odom (2003). DX 62 at
266:22-268:13.
96. There is even a website devoted to the Lynyrd Skynyrd plane crash,
www.tennesseeconcerts.com/planecrash (last accessed May 10, 2017).
97. With the exception of the book by Gene Odom, Plaintiffs have not bothered to
read the books about the band or to determine whether they violate the Consent Decree. Again,
with the exception of the Odom book, Plaintiffs don't know whether Pyle participated in the
books. DX 62 at 266:22-268:13
98. Pyle has previously told his story concerning the plane crash and involvement
with the band to the public numerous times, apparently without objection from Plaintiffs,
including:
a. a 90-minute interview with Pyle on Howard Stern's radio show on January
17, 2017, about among other things the plane crash, Case 1:17-cv-03360-RWS Document 50 Filed 07/24/17 Page 23 of 53
15https://www.youtube.com/watch?v=3dtIISh0ylY (last accessed May 10,
2017). Pyle had previously discussed the plane crash with Stern years
before. Artimus Pyle, Former Lynyrd Skynyrd, Recalls That Horrible
Day, Howard Stern Show (Feb. 12, 2007) (available at
https://www.howardstern.com/show/2007/2/12/that-fateful-night-
RundownGalleryModel-10547/);
b. a 90-minute interview with Pyle on the DJ Eddie Winters radio show on
January 26, 2015, https://www.youtube.com/watch?v=GltGL70QkQs (last
accessed May 10, 2017), an excerpt of which discussing the plane crash is
also available on YouTube,
https://www.youtube.com/watch?v=cXKYAdDJ2Bw (last accessed May
10, 2017);
c. a June 13, 2015 interview with Pyle available on YouTube, see
https://www.youtube.com/watch?v=-l1-NDZN05w (last accessed May 10,
2017);
d. a November 5, 2013 interview with Pyle available on YouTube,
https://www.youtube.com/watch?v=c3naooEC6IQ (last accessed May 10,
2017); and
e. a 1982 Modern Drummer interview with Pyle available on YouTube,
https://www.youtube.com/watch?v=eA6p0Jm6hqY (last accessed May 10,
2017).
99. Plaintiffs have been aware for years that Pyle gave interviews about the band and
never objected to the interviews. TR 77:7-13.
100. Plaintiffs Gary Rossington and Johnny Van Zant ("Johnny") are currently
working with Country Music Television ("CMT") on a film about Lynyrd Skynyrd. Their role in
the CMT film appears to be perfectly analogous to Pyle's role in the CMT film:
Rossington/Johnny Film Cleopatra Film
Title If I Leave Here Tomorrow: A
Film About Lynyrd Skynyrd Street Survivors: The Story of
the Lynyrd Skynyrd Plane
Crash
Perspective Johnny: "Gary [Rossington] will
finally get a chance to tell his side
of the story, being there since the
beginning." The film "will focus primarily
on Pyle's recollection of the
tragedy…." Case 1:17-cv-03360-RWS Document 50 Filed 07/24/17 Page 24 of 53
16
Rossington/Johnny Film Cleopatra Film
Portrayal of Other Band
Members "Above all else, it's a story of
frontman Ronnie Van Zant, his
upbringing, his roots, his work
ethic and his contradictory persona
[ ] both as a mythic Southern Rock
poet and notorious boozed-up
brawler. The documentary also
explores the relationships between
Rossington and founding member
Allen Collins, as well as Ed King
and Art[i]mus Pyle." Pyle: "I want the movie to
portray my band members the
way they were: real, funny
people who loved the music,
loved the success that allowed
us to be able to travel the
world and play for kings and
queens all over the planet."
Band Member Quotes
To Media: Rossington: "I'm excited to work
with [CMT] to tell the no-holds-
barred Skynyrd story—things that
have never been told before and
the days of when we started and
all the hard work we put in to the
music and the band." Pyle: "This is a much-
deserved movie for the fans of
Skynyrd, and for people who'll
become fans after they see it."
Citation PX 67. DX 61.
101. Plaintiffs have testified that they will not know whether the CMT film complies
with the Consent Decree until it is released. TR at 86:10-12; DX 66 at 136:16-22.
102. As a result, the CMT film has not been approved in accordance with the Consent
Decree, and Plaintiffs are waiting to determine whether it is a film focused on Rossington and
Johnny as opposed to Ronnie Van Zant.
Plaintiffs' Failed Efforts To Produce a Film or Book
103. Although the Consent Decree permitted Plaintiffs to produce a book, film, or
other work, Plaintiffs have failed to do so for the last thirty years.
104. In 1998, Viacom offered Plaintiffs $75,000 for the right to make an authorized
film about the band. The film was either never made or never released. DX 25; TR 80:8-12. Case 1:17-cv-03360-RWS Document 50 Filed 07/24/17 Page 25 of 53
17105. There was extensive correspondence with Endeavor i"က、䀁쀁쀁뀀〄䀅င瀀、䀁)99 about
production of a film. Plaintiffs and Endeavor actually agreed upon a treatment for the film. No
movie was made. DX 26, 28; TR 80:13-17.
106. In 1999, discussions progressed far enough about a movie deal with Ideal
Entertainment that Ideal took the time to draft and send a written agreement to Plaintiffs. Again,
no film was made. DX 27; TR 80:18-22.
107. At some point in the 1990s or 2000, Fusion Studios purchased an option from
Plaintiffs to make an authorized biopic about the band. Despite this, no film was made. DX 30;
TR 80:23-82:7.
108. In 2000, Plaintiffs took the time to mark-up a contract for two individuals to make
a film about the band. It does not appear that a final contract was executed. DX 29.
109. Ron Howard and Oliver Stone approached Plaintiffs to make a film. However,
they could not reach a deal because Plaintiffs "demanded complete control on all the money."
Pyle 116:7-19.
Plaintiffs' Latest Project
110. Plaintiffs' latest film project is still in its earliest stages. TR 83:6-13.
111. Plaintiffs have yet to decide whether the project will be a film or a series. TR
83:6-13.
112. Plaintiffs have received an outline, but no one associated with LS has approved
the outline. TR 82:23-83:2.
113. Other than two potential producers, Plaintiffs have not identified anyone who will
be involved in the project. TR 82:19-22. Case 1:17-cv-03360-RWS Document 50 Filed 07/24/17 Page 26 of 53
18114. No one has approved of a film or series being made, and no one has conveyed any
rights in connection with a film or series about the band. TR 82:23-83:2.
115. There has been no discussion about how to finance the film or series or how any
proceeds will be divided. DX 62 at 182:25-3.
116. While Plaintiffs believe that the outline that they have is the first "step" in making
the film or series, since receiving the outline in February 2017, Plaintiffs have not made any
effort to advance this purported project. DX 62 at 183:21-185:2; TR 83:22-25.
117. Plaintiffs don't know what the next steps in their project will be, but they think it
may involve "having some meetings and conversations." Unsurprisingly, the meetings and
conversations have yet to be scheduled. DX 62 at 183:21-185:2.
CONCLUSIONS OF LAW
Requirements for a Permanent Injunction
1. "To obtain a permanent injunction, a plaintiff must succeed on the merits and
show the absence of an adequate remedy at law and irreparable harm if the relief is not granted."
Roach v. Morse, 440 F.3d 53, 56 (2d Cir. 2006) (internal quotation marks omitted).
2. "Irreparable harm is an injury that is not remote or speculative but actual and
imminent, and for which a monetary award cannot be adequate compensation." Aguilar v.
Immigration & Customs Enf't Div. of the U.S. Dep't of Homeland Sec., 811 F. Supp. 2d 803, 828
(S.D.N.Y. 2011) (internal quotation marks omitted).
The First Amendment and the Rule Against Prior Restraint Preclude Any Injunction
3. The application of the First Amendment's protections to motion pictures has been
established since the Supreme Court's decision in Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495
(1952), where the Court recognized that "[t]he importance of motion pictures as an organ of Case 1:17-cv-03360-RWS Document 50 Filed 07/24/17 Page 27 of 53
19public opinion is not lessened by the fact that they are designed to entertain as well as to inform."
Id. at 501. The Court also held that motion pictures are "within the free speech and free press
guaranty of the First and Fourteenth Amendments." Id. at 502. Cf. Superior Films, Inc. v. Dep't
of Educ. of State of Ohio, Div. of Film Censorship, 346 U.S. 587, 589 (1954) (Douglas, J.,
concurring) ("Motion pictures are of course a different medium of expression than the public
speech, the radio, the stage, the novel, or the magazine… [b]ut the First Amendment draws no
distinction between the various methods of communicating ideas.").
4. The fact that a motion picture is intended as entertainment is immaterial. See
Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 65 (1981) ("Entertainment, as well as political
and ideological speech, is protected; motion pictures, programs broadcast by radio and
television, and live entertainment, such as musical and dramatic works, fall within the First
Amendment guarantee"). Cf. Hicks v. Casablanca Records, 464 F. Supp. 426, 433 (S.D.N.Y.
1978) (denying preliminary injunction and granting motion to dismiss claims against fictional
film and book about Agatha Christie titled "Agatha").
5. The act of making a film is necessarily included within the First Amendment's
guarantee of free speech rights. E.g., ACLU of Illinois v. Alvarez, 679 F.3d 583, 595-96 (7th Cir.
2012) ("The right to publish or broadcast an audio or audiovisual recording would be insecure, or
largely ineffective, if the antecedent act of making the recording is wholly unprotected … there is
no fixed First Amendment line between the act of creating speech and the speech itself.")
6. In light of these authorities, Cleopatra has an unambiguous First Amendment right
to publish its film.
7. Plaintiffs seek an order prohibiting the release of the film, an archetypical prior
restraint. Dkt. 18 ¶¶ 73-80. Case 1:17-cv-03360-RWS Document 50 Filed 07/24/17 Page 28 of 53
208. The essence of prior restraints are that they give "public officials the power to
deny use of a forum in advance of actual expression." Southeastern Promotions, Ltd. v. Conrad,
420 U.S. 546, 553 (1975). "Temporary restraining orders and permanent injunctions—i.e., court
orders that actually forbid speech activities—are classic examples of prior restraints." Alexander
v. United States, 509 U.S. 544, 550 (1993).
9. As dangerous restrictions of free speech rights, a prior restraint on expression
comes with a "heavy presumption" against its constitutional validity. Metro. Opera Ass'n, Inc. v.
Local 100, Hotel Employees and Rest. Employees Int'l Union, 239 F.3d 172, 176 (2d Cir. 2001)
("[w]hen a prior restraint takes the form of a court-issued injunction, the risk of infringing on
speech protected under the First Amendment increases"). See also Matter of Providence Journal
Co., 820 F.2d 1342, 1348 (1st Cir. 1986), opinion modified on reh'g, 820 F.2d 1354 (1st Cir.
1987) ("In its nearly two centuries of existence, the Supreme Court has never upheld a prior
restraint on pure speech."); Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 227 (6th
Cir. 1996), opinion clarified (May 8, 1996) ("Indeed, the Supreme Court has never upheld a prior
restraint[.]").
10. Provided the material is neither obscene nor violates a copyright, this strong
presumption can sometimes be overcome "when either national security or an individual's right
to a fair trial is at stake." Matter of Providence Journal Co., 820 F.2d at 1351.
11. The lessor interests identified by Plaintiffs do not qualify.
12. Privacy or reputational interests cannot support a restraint. "An individual's right
to protect his privacy from damage by private parties, although meriting great protection, is
simply not of the same magnitude" as the national-security-type concerns that can support a prior
restraint. Matter of Providence Journal Co., 820 F.2d at 1351 (reversing prior restraint on the Case 1:17-cv-03360-RWS Document 50 Filed 07/24/17 Page 29 of 53
21publication of material that the government had obtained in violation of private citizens' Fourth
Amendment rights). See also Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 558 (1976)
("Designating the conduct as an invasion of privacy, the apparent basis for the injunction here, is
not sufficient to support an injunction against peaceful distribution of informational literature of
the nature revealed by this record.") (internal quotation marks omitted).
13. Private confidentiality agreements, even those backed by law, cannot support a
prior restraint. In N.Y. Times Co. v. United States, 403 U.S. 713 (1971), the Supreme Court
rejected any prior restraint on the publication of classified information because "[t]he guarding of
military and diplomatic secrets at the expense of informed representative government provides
no real security for our Republic." Id. at 719 (Black, J., concurring). In CBS, Inc. v. Davis, 510
U.S. 1315 (1994), Justice Blackmun, acting as the Circuit Justice, reversed a lower court's
injunction against the publication of a video of a meat packing plant surreptitiously taken by an
employee even though there was evidence that the video had been taken unlawfully. Id. at 1318.
In Procter & Gamble Co., 78 F.3d at 224-26, the court rejected a district court's temporary
injunction prohibiting the publication of documents that were the subject of a protective order.
The court explained that "[t]he private litigants' interest in protecting their vanity or their
commercial self-interest simply does not qualify as grounds for imposing a prior restraint." Id. at
225. The justification for a prior restraint was so weak that the district court never would have
issued the injunction "had it engaged in the proper constitutional inquiry." See also Ford Motor
Co. v. Lane, 67 F. Supp. 2d 745, 753 (E.D. Mich. 1999) (interest in protecting trade secrets
insufficient to warrant prior restraint).
14. Mere financial injury cannot support a prior restraint. Courts regularly reject
applications for a prior restraint premised on an economic harm. See CBS, 510 U.S. at 1315 Case 1:17-cv-03360-RWS Document 50 Filed 07/24/17 Page 30 of 53
22(reversing preliminary injunction premised upon economic harm); Procter & Gamble, 78 F.3d at
224-26 ("[C]ommercial self-interest" insufficient to justify prior restraint).
15. Even if economic harm could be sufficiently catastrophic to warrant a prior
restraint, the harm allegedly here is wildly speculative. And only certain and immediate harms
can justify a prior restraint. New York Times Co., 403 U.S. at 730 (Stewart, J., concurring) (to
support prior restraint, movant must show that publication would "surely result in direct,
immediate, and irreparable damage" to his rights).
16. The court's interest in enforcing its order in the 1988 Action does not justify a
prior restraint. Crosby v. Bradstreet & Co., 312 F.2d 483 (2d Cir. 1963), precludes any such
argument. There, the district court entered a consent decree prohibiting the company that
ultimately became Dun & Bradstreet from publishing any information about certain persons'
business activities. Id. at 484. Thirty years later, the district court denied a motion to vacate the
decree, and the Second Circuit reversed, holding that the decree was an unconstitutional prior
restraint:
We are concerned with the power of a court of the United States to
enjoin publication of information about a person, without regard to
truth, falsity, or defamatory character of that information. Such an
injunction, enforceable through the contempt power, constitutes a
prior restraint by the United States against the publication of facts
which the community has a right to know and which Dun &
Bradstreet had and has the right to publish. The court was without
power to make such an order; that the parties may have agreed to it
is immaterial.
Id. at 485. The court invalidated the thirty-year old consent decree because "there does not seem
to be any equity in… the continuation of an injunction which should never have been entered in
the first place." See also Procter & Gamble, 78 F.3d at 224-26 (violation of protective order
insufficient to warrant prior restraint); Matter of Providence Journal, 820 F.2d at 1353 (reversing
contempt citation when order that was violated was an unconstitutional prior restraint of speech). Case 1:17-cv-03360-RWS Document 50 Filed 07/24/17 Page 31 of 53
2317. Reading the instant Consent Decree as an order that restrains the speech of third-
parties like Cleopatra would be inappropriate and potentially call the legitimacy of the entire
order into question.
18. The Consent Decree permits the parties to the 1988 Action to amend the Decree
without leave of Court. DX 15 ¶ 37 ("The parties hereto may unanimously agree to amend their
respective rights and obligations pursuant to this Order, without seeking further intervention of
the Court, provided such shall be in a writing signed by all parties.").
19. If the Consent Decree were read to bind third-parties, it would mean that the 1988
Action parties could impose obligations on third-parties without obtaining the consent of the
third-parties or the approval of the court. One judge has referred to such an order as "ludicrous."
Procter & Gamble, 78 F.3d at 228 (Martin, J., concurring).
20. Retail Credit Co. v. Russell, 218 S.E.2d 54, 62-63 (Ga. 1975), does not mandate a
different result. In Retail Credit, the Georgia court enjoined the defendant from repeating a
defamatory statement that it had made in the past, finding that such defamation "is unprotected
by the First Amendment." Id. at 63. This is incompatible with binding authority in this Circuit.
Metro. Opera Ass'n, Inc. v. Local 100, Hotel Employees & Rest. Employees Int'l Union, 239 F.3d
172, 177 (2d Cir. 2001) ("for almost a century the Second Circuit has subscribed to the majority
view that, absent extraordinary circumstances, injunctions should not ordinarily issue in
defamation cases."); see also Near v. State of Minnesota ex rel. Olson, 283 U.S. 697, 721-22
(1931) (holding statute that permits prior restraint of defamatory material unconstitutional).
21. Beastie Boys v. Monster Energy Drinks, 87 F. Supp. 3d 672, 679 (S.D.N.Y.
2015), does not mandate a different result. Beastie Boys is a copyright and trademark case. No
such claims are brought here. First Amendment analysis is different in the context of intellectual Case 1:17-cv-03360-RWS Document 50 Filed 07/24/17 Page 32 of 53
24property claims such as trademark and copyright infringement because of the fair use doctrine.
See Nihon Keizai Shimbun, Inc. v. Comline Bus. Data, Inc., 166 F.3d 65, 74 (2d Cir. 1999) ("We
have repeatedly rejected First Amendment challenges to injunctions from copyright infringement
on the ground that First Amendment concerns are protected by and coextensive with the fair use
doctrine.").
22. Even if trademark law were applicable, Cleopatra's use of the names and
likenesses protected by the Consent Decree constitutes fair use. The trademark laws cannot be
used "to prevent the publication of an unauthorized group biography or to censor all parodies or
satires which use their name." New Kids on the Block v. News Am. Pub., Inc., 971 F.2d 302, 309
(9th Cir. 1992) (publisher allowed to use musicians' name for money-generating survey).
23. Similarly, "a defendant may lawfully use a plaintiff's trademark where doing so is
necessary to describe the plaintiff's product and does not imply a false affiliation or endorsement
by the plaintiff of the defendant." Tiffany (NJ) Inc. v. eBay Inc., 600 F.3d 93, 102–03 (2d Cir.
2010). To the extent that Cleopatra uses the names and likenesses covered by the Decree, it did
so because it was the only way to identify such persons and, as a result, any use of the names
constituted a nominative fair use.
24. There is no "acting in concert" exception to the rule against prior restraint. To the
contrary, courts deny or strike down applications for prior restraint even when the information
has been obtained in breach of a law or legal duty. See, e.g., N.Y. Times, 403 U.S. at 714
(unlawful dissemination of classified information); CBS, 510 U.S. at 1315 (video unlawfully
taken by an employee); Procter & Gamble Co., 78 F.3d at 224-26 (documents subject to
protective order disclosed); Providence Journal, 820 F.2d at 1348 (information subject to sealing
order disclosed). Courts do so because prior restraints pose a greater threat to democracy than do Case 1:17-cv-03360-RWS Document 50 Filed 07/24/17 Page 33 of 53
25other criminal and civil penalties. See Metro. Opera Ass'n, Inc., 239 F.3d at 176 (explaining that
post-publication criminal and civil sanctions "chill" speech while prior restraints "freeze" it and
that criminal and civil penalties afford "the whole panoply of protections afforded by deferring
the impact of the judgment until all avenues of appellate review have been exhausted.") (internal
quotation marks omitted). Even if Cleopatra acted in concert with Pyle, the First Amendment
prohibits this Court from enjoining the publication of the film.
Defendants Have Not Waived Their First Amendment Rights
25. Waiver of first amendment rights is heavily disfavored. Legal Aid Soc'y v. City of
N.Y., 114 F. Supp. 2d 204, 226-27 (S.D.N.Y. 2000) (internal citations omitted) (holding that
agreement did not waive constitutional right that was not clearly established at time that
agreement was executed).
26. Courts find this high waiver standard to be met only "where parties to the contract
have bargaining equality and have negotiated the terms of the contract, and where the waiving
party is advised by competent counsel and engaged in other contract negotiations." Marinaccio
v. Boardman, Case No. 1:02 CV 00831 NPM, 2005 WL 928631, at *16 (N.D.N.Y. Apr. 19,
2005) (internal quotation marks omitted). See also Leonard v. Clark, 12 F.3d 885, 890-92 (9th
Cir. 1994) (finding waiver where party was represented by skilled counsel, party proposed the
language to which it objected, and parties had relatively equal bargaining power); Accord Lake
James Community Volunteer Fire Dept., Inc. v. Burke, 149 F.3d 277, 280 (4th Cir. 1998).
27. Even when this standard is met, courts do not enforce a waiver where it would be
against the public's interest to do so. See Leonard v. Clark, 12 F.3d 885, 890 (9th Cir. 1993)
("[W]e will not enforce the waiver if the interest in its enforcement is outweighed in the Case 1:17-cv-03360-RWS Document 50 Filed 07/24/17 Page 34 of 53
26circumstances by a public policy harmed by enforcement of the agreement.") (internal quotation
marks omitted).
28. This waiver standard has not been met with respect to Pyle or Cleopatra. In
Marinaccio v. Boardman, 2005 WL 928631, at *17 (N.D.N.Y. Apr. 19, 2005), the court held that
an agreement signed "under protest" did not constitute a waiver of First Amendment rights as a
matter of law. Because Pyle signed the Consent Decree "under protest" (DX 15), it similarly
does not constitute a waiver as a matter of law.
29. Nor does Pyle's execution of the 1991 agreement constitute a waiver. The parties
did not negotiate the 1991 Agreement and Pyle was not represented by an attorney. Pyle 38:10-
41:4. To the contrary, the band told him not to get an attorney and "that they would take good
care of [Pyle] and they would be fair." Id. Because Plaintiffs controlled the band and Pyle
controlled nothing, Plaintiffs held all of the negotiating leverage. Id. Pyle's primary goal was to
"try to shock [the band] out of the gluttonous overconsumption of cocaine" rather than to
negotiate the finer points of his intellectual property rights. Id. at 36:5-16. In fact, the 1991
agreement does not contain the language prohibiting Pyle from exploiting the band's name or
history upon which Plaintiffs rely in this case. It merely references the Consent Decree, and Pyle
could not have had a copy of the Decree at the time he signed the 1991 agreement because he
neither uses computers nor maintains documents. Pyle at 11:4-1, 44:18-46:7. Accordingly, there
is zero "clear and compelling evidence" that Pyle "voluntarily, knowingly, and intelligently"
waived his right to free speech.
1


1
Plaintiffs argue that Pyle cannot assert the defense of duress because he never repudiated the
1991 agreement. (Pl. SJ Opp. at 25.) Even if true, that is irrelevant. An agreement that was not
entered into under duress can still fail to meet the high threshold for waiving a First Amendment
right. See Legal Aid Soc'y, 114 F. Supp. 2d at 225-27 (holding that agreement did not waive
First Amendment right even though agreement was not result of duress as a matter of law). Case 1:17-cv-03360-RWS Document 50 Filed 07/24/17 Page 35 of 53
2730. Cleopatra never waived its First Amendment rights. In fact, Cleopatra did not
even exist at the time the Decree was signed. TR 115:4-7; see Rudd Equip. Co., Inc. v. John
Deere Constr. & Forestry Co., 834 F.3d 589, 595 (6th Cir. 2016) ("Deere could not have waived
the public's First Amendment and common law right of access to court filings.") (internal
quotation marks omitted); Novalogic, Inc. v. Activision Blizzard, 41 F. Supp. 3d 885, 903 (C.D.
Cal. 2013) ("Plaintiff's argument is unpersuasive and borders on the frivolous. Activision was not
a party to the 2005 Vivendi Contract and Plaintiff fails to explain how an unrelated third party's
contract could have resulted in the surrender of Activision's First Amendment rights with respect
to a product, MW3, that was not produced until 2011.").
Laches Bars Any Injunction in this Case
31. In order to "prevail on the affirmative defense of laches, a defendant must prove
that it has been prejudiced by the plaintiffs' unreasonable delay in bringing the action."
Conopco, Inc. v. Campbell Soup Co., 95 F.3d 187, 192 (2d Cir. 1996). Accord Saratoga Vichy
Spring Co. v. Lehman, 625 F.2d 1037, 1040 (2d Cir. 1980).
32. Over a century ago, Judge Learned Hand explained the "obvious" rationale for the
laches doctrine:
It must be obvious to every one familiar with equitable principles
that it is inequitable for the owner of a copyright, with full notice
of an intended infringement, to stand inactive while the proposed
infringer spends large sums of money in its exploitation, and to
intervene only when his speculation has proved a success. Delay
under such circumstances allows the owner to speculate without
risk with the other's money; he cannot possibly lose, and he may
win.

Haas v. Leo Feist, Inc., 234 F. 105, 108 (S.D.N.Y. 1916). Case 1:17-cv-03360-RWS Document 50 Filed 07/24/17 Page 36 of 53
2833. Plaintiffs were aware that Cleopatra was making the film by July 15, 2016, the
date of Plaintiffs' cease and desist letter, and several weeks after the news stories about the film.
DX 1.
34. Six days later, Cleopatra advised Plaintiffs that their cease and desist letter was
rejected because Cleopatra had a First Amendment right to make the film. Cleopatra also
refused Plaintiffs' demands, including a demand for a copy of the script and a demand for
confirmation "in writing" that the film would not be made. DX 3; TR 62:6-13.
35. Plaintiffs waited until May 5, 2017, almost a year after it sent its cease and desist
letter. Dkt. 18. A delay of almost a year is unreasonable and warrants denial of injunctive relief.
See Kamat v. Kurtha, Case No. 05 CIV.10618 KMW THK, 2008 WL 5505880, at *5 (S.D.N.Y.
Apr. 14, 2008), report and recommendation adopted, No. 05 CV. 10618 KMW THK, 2009 WL
103643 (S.D.N.Y. Jan. 15, 2009) ("Courts have found such prejudice and, thus, made a laches
determination, even where a party's delay in asserting its rights was less than one year.")
(collecting cases).
36. Since Plaintiffs learned that Cleopatra was making the film, Cleopatra has
invested over $1 million in producing the film. DX 13; TR 145:20-146:1.
37. This constitutes undue prejudice sufficient to est䀄倄쀅怄뀀〄䀄怄뀄者. In New Era
Publications International, ApS v. Henry Holt and Company, Inc., 873 F.2d 576 (2d Cir. 1989),
the plaintiff learned in 1986 that the defendant was producing an infringing book. Id. at 584.
That same year the defendant made clear to the plaintiff that it was unwilling to enter into
discussions concerning the alleged infringement. Id. Yet, the plaintiff delayed bringing suit in
the United States until 1988. Id. The Second Circuit held that laches barred any injunction
against the distribution of the infringing book: Case 1:17-cv-03360-RWS Document 50 Filed 07/24/17 Page 37 of 53
29If New Era promptly had sought an adjudication of its rights, the
book might have been changed at minimal cost while there still
was an opportunity to do so. At this point, however, it appears that
a permanent injunction would result in the total destruction of the
work since it is not economically feasible to reprint the book after
deletion of the infringing material. Such severe prejudice, coupled
with the unconscionable delay already described, mandates denial
of the injunction for laches and relegation of New Era to its
damages remedy.
Id. at 584-85 (internal citation omitted).
38. Courts have reached precisely the same outcome in cases where plaintiff delayed
while the infringing or otherwise unlawful asset was being created. See Chirco v. Crosswinds
Communities, Inc., 474 F.3d 227, 235-36 (6th Cir. 2007) (laches prohibited injunction requiring
destruction of constructed or substantially constructed homes because plaintiff delayed bringing
second infringement action); Allens Creek/Corbetts Glen Pres. Grp., Inc. v. West, 2 F. App'x
162, 165 (2d Cir. 2001) (expenditure of $1 million on environmental project constitutes
prejudice); Conopco, 95 F.3d at 191-93 (laches barred false advertising claim because defendant
had invested in marketing strategy and it was too late to adopt alternative marketing strategy).
39. Because Plaintiffs waited almost a year to bring this action and, in the interim,
Cleopatra invested significant resources in making its film, the doctrine of laches bars any
injunction, which constitutes the only relief that Plaintiffs seek in this case.
Unclean Hands Bars Any Injunction
40. The doctrine of unclean hands "closes the doors of a court of equity to one tainted
with inequitableness or bad faith relative to the matter in which he seeks relief, however
improper may have been the behavior of the defendant." Motorola Credit Corp. v. Uzan, 561
F.3d 123, 129 (2d Cir. 2009) (internal quotation marks omitted).
41. "To sustain an unclean hands defense, a defendant must show that the plaintiff has
engaged in inequitable conduct or bad faith where the misconduct has a material relation to the Case 1:17-cv-03360-RWS Document 50 Filed 07/24/17 Page 38 of 53
30equitable relief that plaintiff seeks." Stokely-Van Camp, Inc. v. Coca-Cola Co., 646 F. Supp. 2d
510, 533 (S.D.N.Y. 2009). In Motorola, the Second Circuit held that the doctrine of unclean
hands prohibited parties who violated an injunction from seeking relief from the injunction.
42. Plaintiffs have violated the Date Requirement, the Rule of Three, and royalty
payments required by the Consent Decree for decades. TR 48:9-54:2. Plaintiffs have also
participated in a film with CMT that is extremely similar to Cleopatra's film, which violates the
Decree to the extent that the Cleopatra film runs afoul of the Decree. TR 84:16-85:3; DX 101.
43. This inequitable conduct prohibits any injunction permitting Plaintiffs to claim the
benefits of the Consent Decree against other parties.
44. Whether Plaintiffs have a meritorious claim is irrelevant to the unclean hands
determination. Precision Instrument Mfg. Co. v. Auto. Maint. Mach. Co., 324 U.S. 806, 814
(1945) (unclean hands "closes the doors of a court of equity to one tainted with inequitableness
or bad faith relative to the matter in which he seeks relief, however improper may have been the
behavior of the defendant."); see also Alcatel USA, Inc. v. DGI Techs., Inc., 166 F.3d 772, 794
(5th Cir. 1999) ("if the plaintiff has unclean hands and seeks equitable relief, the defendant's own
improper behavior serves as no bar to its equitable defenses."); E.E.O.C. v. Recruit U.S.A., Inc.,
939 F.2d 746, 752 (9th Cir. 1991) (unclean hands "怄 怄者怀々瀄뀄耀〄瀅ors of a court of equity to one
tainted with an inequitableness or bad faith relative to the matter in which he seeks relief,
however improper may have been the behavior of the defendant."); West v. West, 825 F. Supp.
1033, 1049 (N.D. Ga. 1992) ("Unclean hands generally prevents the court from even considering
the merits of plaintiff's claims. The fact that defendant may be liable for all claims alleged is
simply irrelevant."). Case 1:17-cv-03360-RWS Document 50 Filed 07/24/17 Page 39 of 53
31Artimus Pyle is Not Bound by the Consent Decree
45. "[A] consent decree's force comes from agreement rather than positive law."
Dunn v. Carey, 808 F.2d 555, 559–60 (7th Cir. 1986); see also Keith v. Volpe, 118 F.3d 1386,
1393 (9th Cir. 1997) (same).
46. Accordingly, a party cannot be properly bound by a consent decree to which he or
she never actually agreed. On these grounds, courts regularly refuse to enforce consent decrees
against parties who either never signed them, or whose signatories lacked authority. See, e.g.,
Perkins v. City of Chicago Heights, 47 F.3d 212, 218 (7th Cir. 1995) (vacating conse"စ瀀〄瀄耄怅倄耄耀
whose signatories lacked authority to agree).
47. Artimus Pyle did not assent to the Consent Decree. While his signature appears
on the document, it is clearly followed by the words "Under Protest," unambiguously indicating
that he does not agree to its terms. DX 15 at P000044.
48. Numerous courts have held that a signature "under protest" does not constitute
actual assent to an agreement. See e.g. Bergenline Prop. Grp., LLC v. Coto, Index No. A-0259-
14T2, 2015 WL 7428755, at *7 (N.J. App. Div. Nov. 䀁 、倁、䀁耀쀀 뀀倄$efendant's 'signing under
protest' language did not constitute an unqualified acceptance of those essential terms"); Ex parte
Wright, 443 So. 2d 40, 41 (Ala. 1983) (amendment to teachers' contract signed "under protest"
was not enforceable); Church Mut. Ins. Co. v. Kleingardner, 2 Misc. 3d 676, 683, 774 N.Y.S.2d
265, 271 (Sup. Ct. 2003) (acceptance of check "under protest" did not constitute assent to accord
and satisfaction).
Cleopatra is Not Bound by the Consent Decree
49. Although injunctions that are required by law can bind persons acting in "active
concert" with parties named in the injunction, consent decrees bind only those who voluntarily Case 1:17-cv-03360-RWS Document 50 Filed 07/24/17 Page 40 of 53
32agreed to them. See United States v. City of N.Y., 198 F.3d 360, 366 (2d Cir. 1999) ("Those who
are not parties to a consent decree are free to challenge the decree and actions taken under it.");
Cobalt Multifamily Inv'rs I, LLC v. Shapiro, Case No. 06 CIV. 6468 KMW MHD, 2013 WL
5418588, at *1 (S.D.N.Y. Sept. 27, 2013) (denying motion to issue order limiting third-parties'
rights).
50. This is because a consent decree "does not determine that the obligations assumed
by the parties are required by law" and "often impose[s] rights and obligations greater than those
required by law." Ass'n for Retarded Citizens of Connecticut, Inc. v. Thorne, 30 F.3d 367, 370
(2d Cir. 1994). In contrast, injunctions "required by law" enforce pre-existing rights under
constitutions, legislative statutes, or the common law and may be entered even against unwilling
parties "[w]here the district court exercises its jurisdiction to rule on the merits of a litigation"
and "determines that the law requires a certain outcome and is empowered to issue remedial
orders to effectuate that outcome." Id.
51. In contrast, "[b]ecause the terms of the consent decree [are] voluntarily assumed
rather than legally imposed, there is no basis for extending the negotiated outcome to a
nonparty." Ass'n for Retarded Citizens of Connecticut, 30 F.3d at 370; accord Martin v. Wilks,
490 U.S. 755, 761–62 (1989) (superseded by statute, 42 U.S.C. § 2000e-2(n), but only for
employment-related claims) ("A court's approval of a consent decree between some of the parties
therefore cannot dispose of the valid claims of nonconsenting intervenors.") (internal quotation
marks omitted); Madison Square Garden Boxing, Inc. v. Shavers, 562 F.2d 141, 143-44 (2d Cir.
1977) (reversing injunction issued against non-party to consent judgment because "[a] judgment
entered by consent and stipulation is binding upon the consenting parties only."). Case 1:17-cv-03360-RWS Document 50 Filed 07/24/17 Page 41 of 53
3352. And "[w]hile a district court has authority to enforce a judicially-approved
consent decree against the parties to it, a district court that enforces the decree against a nonparty
acts beyond its jurisdiction and thus beyond the scope of the All Writs Act." Ass'n for Retarded
Citizens of Connecticut, 30 F.3d at 370 (holding that state agency was not bound by consent
decree entered into by another agency of the very same state).
53. United States v. Int'l Broth. Of Teamsters, 266 F.3d 45 (2d Cir. 2001)
("Teamsters"), is not to the contrary. In Teamsters, the Second Circuit held that a consent decree
into which a union had entered continued to apply to labor union members after they left the
union: "[w]e fail to see how their having been forced out of the IBT ipso facto deprives the
district court of the jurisdiction over them it unquestionably had while they were members of the
IBT." Id. at 50. In contrast to the appellants in Teamsters, Cleopatra was never subject to the
Consent Decree. Teamsters stands for the unremarkable proposition that a party who is bound
by an order of the court cannot escape compliance because he or she changes employers or
otherwise alters his or her circumstances.
54. And notably, the Second Circuit in Teamsters struck down all portions of the
lower court's decision that did not involve "direct association with members or employees of the
IBT or its local unions." Id. Moreover, the court specifically struck down portions of the district
court's injunction that "risk[ed] interference with appellants' First Amendment right of petition."
Id. As such, even if Teamsters were read to permit a court to enjoin third party action under a
consent decree, it would do so only in cases where free speech rights are not violated, as is the
case here.
55. Cleopatra was not a party to the 1988 Action, never agreed to the Consent Decree
and cannot properly be bound by it. Case 1:17-cv-03360-RWS Document 50 Filed 07/24/17 Page 42 of 53
34Cleopatra Did Not Violate the Consent Decree
56. Only the actions that Cleopatra took after receiving notice of the Consent Decree
could possibly have violated its terms. See Fed. R. Civ. P. 65(d); S.E.C. v. Platinum Inv. Corp.,
98 F. App'x 33, 35 (2d Cir. 2004).
57. It is undisputed that Cleopatra did not receive notice of the Consent Decree –
which Plaintiffs insisted be under seal – until late July 2016. DX 8; TR 128:20-129:2. As such,
nothing that Cleopatra did prior to late July 2016 – including signing an agreement with Pyle and
interviewing him – could have violated the Consent Decree as a matter of law. See SEC v.
Haligiannis, 608 F. Supp. 2d 444 (S.D.N.Y. 2009) (third-party entitled to collect on judgment
obtained in violation of asset freeze because third-party did not have notice of asset freeze); O&L
Assocs. v. Del Conte, 601 F. Supp. 1463, 1464-65 (S.D.N.Y. 1985) (Movi耀々怅瀅耄瀄쀅 〄瀄쀄瀀 not violate
injunction when it licensed music from defendant even though injunction prohibited defendant
from using band's name).
58. Cleopatra's interaction with Pyle after July 2016 was limited to obtaining certain
historical information from him and permitting Pyle to appear in a cameo. DX 9; TR 139:2-6.
At no point after July 2016 did Cleopatra hold Pyle out to be a writer or producer of the film.
Exs. 60-61.
59. It is undisputed that mere interviews with Pyle do not violate the Consent Decree.
TR 76:21-77:6. Similarly, Pyle's cameo does not violate the Consent Decree: Pyle appeared in
VH1's Uncivil Wars, and Plaintiffs had no problem with it. TR 76:7-10.
60. The Consent Decree does not prohibit "fair use" of the name "Lynyrd Skynyrd"
and the persons whose names and likenesses are protected in the Decree. To the contrary, it Case 1:17-cv-03360-RWS Document 50 Filed 07/24/17 Page 43 of 53
35explicitly authorizes Pyle to use the "Lynyrd Skynyrd" name and "related matters" when
exploiting his own life story "in any medium":
Each of the Individual Defendants, Ronnie's Estate and Gaines'
Estate shall have the right to exploit his (or with respect to the
Estates, the applicable decedent's) own respective life story in any
manner or medium, including without limitation, in books or other
print publications and in theatrical feature or television motion
pictures, without obligation, financial or otherwise, to any other
party hereto. In such connection, each of the foregoing shall have
the right to refer to "Lynyrd Skynyrd" and related matters to
describe and portray his experience(s) with "Lynyrd Skynyrd;"
provided that no such exploitation of life story rights is authorized
which purports to be a history of the "Lynyrd Skynyrd" band, as
opposed to the life story of the applicable individual.
DX 15 ¶ 3.
61. At no point did Pyle convey the band's story rights to Cleopatra. And the Consent
Decree explicitly authorized Pyle to use the band and its members' names when providing his
own biographical information, including his recollection about the 1977 crash. DX 15.
62. Even if the Consent Decree did not explicitly permit Cleopatra to interview Pyle,
any references to the band or its members would have constituted a nominative fair use. The
trademark laws cannot be used "to prevent the publication of an unauthorized group biography or
to censor all parodies or satires which use their name." New Kids on the Block v. News Am.
Pub., Inc., 971 F.2d 302, 309 (9th Cir. 1992) (publisher allowed to use musicians' name for
money-generating survey). Similarly, "a defendant may lawfully use a plaintiff's trademark
where doing so is necessary to describe the plaintiff's product and does not imply a false
affiliation or endorsement by the plaintiff of the defendant." Tiffany (NJ) Inc. v. eBay Inc., 600
F.3d at 102–03. Case 1:17-cv-03360-RWS Document 50 Filed 07/24/17 Page 44 of 53
3663. To the extent that Pyle used any of the Plaintiffs' names in his interview with
Cleopatra, he did so because it was the only way to identify such persons and, as a result, any use
of the names constituted a nominative fair use.
64. The Consent Decree permits Pyle and/or those acting in concert with him, to
exploit Pyle's "life story in any manner or medium" and to "refer to 'Lynyrd Skynyrd' and related
matters and to describe and portray [Pyle's] experience(s) with 'Lynyrd Skynyrd'" so long as Pyle
does not create a "history of the 'Lynyrd Skynyrd' band." DX 15 at ¶ 3.
65. Cleopatra's film is not a history of the Lynyrd Skynyrd band, as it takes place
during a single week and does not depict (i) the founding of the band; (ii) any of the band's
experiences prior to Pyle's joining; (iii) any of the band's experiences after the 1977 plane crash.
TR 71:4-6; TR 72:13-15; 133:13-14; 153:18-154:2; Cohn 96:5-8; see also, generally DX 6.
66. Cleopatra's film does not hold itself out as a history of the Lynyrd Skynyrd band,
as its credits specifically state that it is not authorized by the band itself or its former members.
TR 146:7-12.
67. Cleopatra's film depicts Pyle's experience with the band, as the entire film is told
from Pyle's perspective and he is the main character. DX 401; Cohn 141:11-18; TR 140:2-10;
143:15-16; see also, generally DX 6.
The Lack of Irreparable Harm Precludes an Injunction
68. "To obtain a permanent injunction, a plaintiff must succeed on the merits and
show the absence of an adequate remedy at law and irreparable harm if the relief is not granted."
Roach, 440 F.3d at 56 (internal quotation marks omitted).
69. Canada Dry Delaware Valley Bottling Co. v. Hornell Brewing Co., Inc., Case No.
11 Civ. 4308 (PGG), 2013 WL 5434623, at *10 (S.D.N.Y. Sept. 30, 2013), does not mandate a Case 1:17-cv-03360-RWS Document 50 Filed 07/24/17 Page 45 of 53
37contrary result. It is settled law that courts only issue injunctions for violating consent decrees
upon a showing of irreparable harm. See Ellis v. Gallatin Steel Co., 390 F.3d 461, 476 (6th Cir.
2004) (reversing injunction premised on violation of consent decree where there was no showing
of "a risk of continuing irreparable harm").
70. Courts even require a showing of irreparable harm when a party has entered into a
contract calling for specific performance. See Saint Laurie Ltd. v. Yves Laurent Am., Inc., Case
No. 13-CV-6857 (DAB), 2015 WL 12991205, at *14-16 (S.D.N.Y. Mar. 27, 2015) (rejecting
argument that irreparable harm need not be shown).
71. To establish irreparable harm, Plaintiffs must demonstrate injury "that is not
remote or speculative but actual and imminent, and for which a monetary award cannot be
adequate compensation." Worldwide Diamond Trademarks, Ltd. v. Blue Nile, Inc., Case No. 14-
CV-3521 (VSB), 2014 WL 7933941, at *3 (S.D.N.Y. Nov. 6, 2014) (citing Tom Doherty
Assocs., Inc. v. Saban Entm't, Inc., 60 F.3d 27, 37 (2d Cir. 1995)). "It is not enough for a movant
to demonstrate the possibility of irreparable harm; the movant must show that it is likely to suffer
irreparable harm if equitable relief is denied." Worldwide Diamond, 2014 WL 7933941, at *3
(citing JSG Trading Corp. v. Tray–Wrap, Inc., 917 F.2d 75, 79 (2d Cir. 1990)).
72. At various points in this case, Plaintiffs have asserted that three harms warrant an
injunction: (a) Cleopatra's film will injure Plaintiffs' alleged competing film; (b) Pyle's
association with the band will cause irreparable harm; and (c) consumer confusion. In fact,
Cleopatra's film will not cause Plaintiffs any harm whatsoever.
73. First, Plaintiffs have not provided evidence that they are likely to make any film
concerning the Lynyrd Skynyrd band. Plaintiffs have failed to make a film for thirty years and
there is – literally – zero evidence that they are ever going to do so. As set forth in detail above, Case 1:17-cv-03360-RWS Document 50 Filed 07/24/17 Page 46 of 53
38Plaintiffs have previously been significantly closer to making a film than they are today – at one
point, they even sold an option for a film. But today, they are absolutely nowhere, speculating
about maybe "having some meetings and conversations." Plaintiffs' possible production at some
future date of a film of uncertain topic and scope with unknown business partners or
collaborators, is the textbook example of "remote and speculative."
74. In addition, Plaintiffs have not even attempted to show how the film would affect,
let alone impair, their "right to produce and distribute" their prospective film. See Burroughs v.
Metro-Goldwyn Mayer, Inc., 491 F. Supp. 1320 (S.D.N.Y.), aff'd, 636 F.2d 1200 (2d Cir. 1980)
(rejecting plaintiff's speculative claim that a potential film based on "Tarzan" would not be made
by plaintiff's licensee in absence of injunction assuring that licensee would have exclusive rights
to "Tarzan"). According to Plaintiffs, they and the producers that they have selected have
decided to proceed with their film despite the Cleopatra film and the CMT film that is set to be
released shortly. In the unlikely event that Plaintiffs producer and distribute a film, it will be the
sixth film about the band. If the Court were to enjoin the Cleopatra film, Plaintiffs' purported
film would be the fifth film about the band. There is no reason to believe that anyone would see
a fifth film about a band but not the sixth.
75. Even if Cleopatra's film made some future picture less economically valuable,
Courts in the Second Circuit have long held that an injury compensable by money damages is
insufficient to establish irreparable harm. E.g., CRP/Extell Parcel I, L.P. v. Cuomo, 394 Fed.
Appx. 779, 781 (2d Cir. 2010) ("[N]otwithstanding any compensable losses, a movant must
provide evidence that it is likely to suffer damage that cannot be rectified by financial
compensation before a district court may providently exercise its equitable power to grant
injunctive relief."). Here, had Plaintiffs sought compensatory damages, they would have been Case 1:17-cv-03360-RWS Document 50 Filed 07/24/17 Page 47 of 53
39easily calculated. Plaintiffs were previously off者倄耄瀀 瀁ꀁ耀、、  for the rights to make a film.
Similarly, three decades of correspondence provide numerous offers that provide a basis for
calculating what Plaintiffs would have made if they ever produced a film.
76. Second, Plaintiffs no longer claim that Pyle's involvement with Cleopatra's film
will harm their reputation; instead, they admit that they want Pyle to be involved in their own
film. TR 84:6-12. Even if they did assert reputational harm, such a claim would not be
sufficient to show irreparable harm. In re United Pan-Europe Comms, N.V., Case Nos. 02–
16020 (BRL), M–47(RWS), 2003 WL 221819, at *4 (S.D.N.Y. Jan. 30, 2003) (rejecting
"irreparable harm" because there were no "specific allegations" as to what movant's reputation
was at time and how it would be affected by non-movant's actions); see also Nat'l Football
League Players Ass'n v. Nat'l Football League Props., Inc., Case No. 90 Civ. 4244 (MJL), 1991
WL 79325, at *4-5 (S.D.N.Y. May 7, 1991) ("Plaintiff also argues that it faces destruction of its
reputation and goodwill, the loss of which cannot be compensated with money damages.
However, we fail to see convincing evidence of any loss of reputation or goodwill in the
elaborate affidavits and exhibits submitted with this motion."); Worldwide Diamond, 2014 WL
7933941, at *4 (subjective belief and speculation do not establish irreparable harm).
77. Rex Medical L.P. v. Angiotech Pharmaceuticals (US), Inc., 754 F. Supp. 2d 616
(S.D.N.Y. 2010), does not mandate a different result. To the contrary, Rex Medical explains that
"[t]ypically, cases where courts have found irreparable harm from a loss of goodwill or business
relationships have involved situations where the dispute between the parties leaves one party
unable to provide its product to its customers." Id. at 621.
78. Here, Cleopatra's exercise of its First Amendment right to publish its film in no
way deprives Plaintiffs of their First Amendment right to publish a competing film or television Case 1:17-cv-03360-RWS Document 50 Filed 07/24/17 Page 48 of 53
40series. See Burroughs, 491 F. Supp. at 1320 (two movies can be made about same subject
matter). Anyway, Plaintiffs have testified that their film will be made, thus eliminating any
putative injury resulting from their film not being made.
79. Third, Plaintiffs have introduced no evidence that Cleopatra's film will lead to
consumer confusion. Even if they had, it would not rise to the kind of irreparable harm that
would support an injunction:
Marketplace confusion between two movies … does not lead
inexorably to a finding of irreparable harm. In contrast to the
purchase of an expensive camera, the purchase of one DVD is not
likely to preclude the purchase of another. And unlike confusion
between two cameras, marketplace confusion about the alleged
connection between these movies is not as likely to affect
consumer judgments about the quality of either. Finally, there is
evidence here that any confusion has actually benefitted [Plaintiff]
by bringing it increased publicity.
Clonus Assocs. v. Dreamworks, LLC, 417 F. Supp. 2d 248, 256 (S.D.N.Y. 2005).
80. In any event, Cleopatra's film includes a clear statement in the opening of the film
that Plaintiffs have not authorized the film. TR 146:7-12. Such a disclaimer precludes a finding
of consumer confusion. See Consumers Union of United States, Inc. v. General Signal Corp.,
724 F.2d 1044, 1053 (2d Cir. 1983) ("Disclaimers are a favored way of alleviating consumer
confusion as to source or sponsorship. … Absolute prohibitions of speech as provided for in the
instant preliminary injunction are improper where there is any possibility that an explanation or
disclaimer will suffice.").
Balancing Hardships Weighs Against an Injunction
81. An injunction would irreparably injure Cleopatra because the loss of First
Amendment rights, even for a moment, is irreparable injury. Elrod v. Burns, 427 U.S. 347, 373
(1976) ("The loss of First Amendment freedoms, even for minimal periods of time,
unquestionably constitutes irreparable injury.") Accord N.Y. Progress & Prot. PAC v. Walsh, Case 1:17-cv-03360-RWS Document 50 Filed 07/24/17 Page 49 of 53
41733 F.3d 483, 486 (2d Cir. 2013) (reversing denial of preliminary injunction against statute that
limited speech).
82. The public's right to view Cleopatra's film strongly favors denial of the
preliminary injunction. See, e.g., N.Y. Times Co, 403 U.S. at 730 (Stewart, J. concurring)
("[While] I am convinced that the executive is correct with respect to some of the documents
involved" that publication is against "the national interest," "I cannot say that disclosure of any
of them will surely result in direct, immediate, and irreparably damage to our Nation or its
people," and, as a result, no injunction against publication of classified documents should issue);
Monster Comms., Inc. v. Turner Broadcasting Sys., Inc., 935 F. Supp. 490, 494 (S.D.N.Y. 1996)
("There is a public interest in receiving information concerning the world in which we live. The
more newsworthy the person or event depicted, the greater the concern that too narrow a view of
the fair use defense will deprive the public of significant information.").
83. Any interest that the public has in ensuring that its court orders are enforced is
easily outweighed by the public's interest in freedom of speech. See Crosby, 312 F.2d at 485
(invalidating thirty-year old consent decree that violated the First Amendment because "there
does not seem to be any equity in… the continuation of an injunction which should never have
been entered in the first place"); Matter of Providence Journal, 820 F.2d at 1353 (reversing
contempt citation when order that was violated was an unconstitutional prior restraint of speech).
Plaintiffs' Claims Against Pyle Are Moot
84. Plaintiffs' only claim in this action is for an injunction barring the release of
Cleopatra's film.
85. A request for injunctive relief is properly dismissed as moot where the party to be
enjoined has no ability to engage in the prohibited behavior. Watford v. Scully, Case No. 88 Case 1:17-cv-03360-RWS Document 50 Filed 07/24/17 Page 50 of 53
42CIV. 8372 (RWS), 1989 WL 58062, at *1 (S.D.N.Y. May 24, 1989) ("Because Scully has no
authority to administer the Program at Attica, an injunction could have no affect on his conduct.
Accordingly, the complaint against Scully is dismissed as moot."). See also Correction Officers
Benev. Ass'n v. Kralik, Case No. 04 CIV. 2199 (PGG), 2009 WL 856395, at *8 (S.D.N.Y. Mar.
26, 2009) ("Because Croce is no longer the Chairman of the Commission, and therefore no
longer has the power to ensure compliance with any injunction granted by the Court, any claim
for such relief against Croce in his individual capacity must be dismissed."); Odom v. Senkowski,
Case No. 96-CV-554, 1997 WL 458450, at *1 (N.D.N.Y. Aug. 7, 1997) ("Odom's request for an
injunction against retaliation is also moot because the named defendants—with the exception of
high level DOCS personnel against whom Odom has furnished no credible, specific evidence of
retaliation—are no longer in a position to retaliate against him.")
86. Pyle has no copies of the film or its footage. He has no right or ability to control
the film's release or exhibition. TR 146:13-147:25. Accordingly, all claims against Pyle are
properly dismissed as moot.
No Missing Witness Inference Is Warranted
87. Plaintiffs seek a missing witness inference because third-party Jared Cohn did not
provide live testimony at the trial. No such instruction is warranted because all parties
introduced Cohn's deposition testimony.
88. Courts routinely reject a missing witness inference where the witness's deposition
testimony was introduced in evidence at the trial. See Williams v. Arctic Cat, Inc., Case No.
3:11-CV-445, 2014 WL 1028476, at *11 (N.D.N.Y. Mar. 13, 2014) ("The Court has already
ruled that Bernier's testimony may be presented at the trial via his recorded deposition testimony.
Because his testimony will be available at trial, the missing witness instruction is not available Case 1:17-cv-03360-RWS Document 50 Filed 07/24/17 Page 51 of 53
43for this witness, and the motion will be denied in this respect."); Velez v. Novartis Pharm. Corp.,
Case No. 04 CIV. 9194 CM, 2010 WL 11043081, at *3 뀃态ဂ瀁ဃခဃ쀁က。逄耄". 25, 2010) (no missing
witness charge where deposition testimony can be introduced). See also Latin Am. Music Co. v.
Am. Soc. of Composers Authors & Publishers, 593 F.3d 95, 102 (1st Cir. 2010) (no missing
witness instruction warranted where witness's deposition testimony was introduced); Scripps-
Howard Broad. Co. v. Regency Elecs., Inc., 765 F.2d 146 (6th Cir. 1985) (same); Cameo
Convalescent Ctr., Inc. v. Senn, 738 F.2d 836, 844 (7th Cir. 1984) (same).
89. To give a missing witness instruction, the witness must have been "peculiarly
within [the] power of the other party." United States v. Mittelstaedt, 31 F.3d 1208, 1216 (2d Cir.
1994) (internal quotation marks omitted). However, where all parties have had an opportunity to
depose the witness, the witness's testimony is equally available to all parties.
90. Missing witness instructions are also not permitted where the witness's testimony
would be cumulative, Rodriguez v. Walker, Case No. 97 CIV. 2823 KTD, 1999 WL 61834, at *4
(S.D.N.Y. Feb. 9, 1999) ("[N]o instruction is necessary where the unpresented testimony would
be merely cumulative."). Because deposition testimony was introduced, Cohn's live testimony
would have been necessarily cumulative of his deposition testimony.
91. Missing witness instructions are inappropriate where there is no dispute about the
contents of the witness's testimony. See United States v. Caccia, 122 F.3d 136, 138–39 (2d Cir.
1997) ("In such circumstances, it is more likely than not that the testimony of an uncalled
witness would have been unfavorable to the party with such control, and a jury may reasonably
draw such an inference."). There is no uncertainty as to what Cohn's testimony would be and, as
a result, there is no reason to make any inferences whatsoever as to what Cohn's testimony would
be had he been called to testify. Case 1:17-cv-03360-RWS Document 50 Filed 07/24/17 Page 52 of 53
4492. There is no basis in law or fact for a missing witness inference in this case.
Plaintiffs' request for such an inference is pure gamesmanship and is denied. See United States
v. Gaskin, 364 F.3d 438, 463 (2d Cir. 2004) ("[W]e recognize that an “aura of gamesmanship”
frequently accompanies requests for missing witness charges").
Dated: New York, NY
July 24, 2017

Respectfully submitted,

MANDEL BHANDARI LLP

By: /s/ Evan Mandel
Evan Mandel
Robert Glunt
80 Pine Street
New York, NY 10005
T: (212) 269-5600
F: (646) 964-6667
[email protected]
Case 1:17-cv-03360-RWS Document 50 Filed 07/24/17 Page 53 of 53