The Bill Graham Show Goes On … and On - Graham-Sult v. Clainos

by McDermott Will & Emery
Contact

The U.S. Court of Appeals for the Ninth Circuit concluded that the federal district court erred in dismissing claims for copyright infringement, conversion and declaratory relief brought by the sons of the late concert promoter Bill Graham, against several parties that acquired physical and intellectual property from Graham’s estate.  In addition, the dismissal of claims of conversion and breach of fiduciary duty against the executor of Graham’s estate under California’s anti-SLAPP statue were also reversed by the appellate court. Graham-Sult v. Clainos, Case Nos. 11-6779, 12-15892 (9th Cir., Dec. 27, 2013) (Smith, J.).

From the 1960s until his death in a helicopter crash in 1991, Bill Graham was a local and international concert promoter.  Graham’s will created individual trusts for his sons who were 14 and 23 at the time of Graham’s death.  The executor of the will and trustee of the trusts was Graham’s friend and business partner, Nicholas Clainos.

In 2010, 15 years after the probate court entered its final disposition for Graham’s estate, the plaintiffs filed a district court action against Clainos, Richard Greene (Clainos’s lawyer in the estate and trust matters) and the “BGA Defendants,” who were parties affiliated with later purchases of business interests owned by Graham’s estate, including Bill Graham Enterprises, Inc. (BGE).

During the probate of Graham’s estate, and with the encouragement of the probate court, Greene structured a sale of BGE to the company’s key employees, and a new company, Bill Graham Presents (BGP) was formed.  Three weeks after the final order of the probate court, Greene prepared an assignment (the Assignment) executed by Clainos granting all of the intellectual property “claimed by or registered in” Graham’s name to BGE and backdated the assignment to August 1, 1995—seven days before the probate court had entered the final order of distribution.  Following the Assignment, the BGA Defendants came to own physical and intellectual property through transactions involving the sale of BGP to various entities.

The plaintiffs brought 12 causes of action claiming that they were entitled to pro rata distribution of certain physical and intellectual property belonging to Graham’s estate, including copyrighted concert posters, a trademark registration for THE FILLMORE and several personal scrapbooks (the Archives), which the plaintiffs claimed were owned in Graham's name at the time of his death.

The district court dismissed the plaintiffs’ claims against Clainos under the California anti-SLAPP statute, which allows the striking of complaints filed against a party based on “writing[s] made in connection with an issue under consideration or review by a… judicial body.”  However, the 9th Circuit held that six of the plaintiffs’ causes of action were unrelated to anti-SLAPP “protected activity” pertaining to the probate case.  Namely, Clainos’s execution of the back dated Assignment and removal of Graham’s personal property were not activities of written or oral statements constituting protected activity under anti-SLAPP.  Furthermore, the transfer of Graham’s intellectual property through the Assignment was found to exist outside of the probate court’s supervision since the Assignment was drafted and executed after the final probate distribution was entered.  Therefore, the 9th Circuit reversed and remanded the dismissal of six of the plaintiffs’ claims against Clainos, including claims for conversion of the Archives.

In addition to the claims against Clainos, the 9th Circuit reversed the district court’s dismissal of the plaintiffs’ claims against the BGA Defendants for conversion, copyright infringement and declaratory judgment.  Regarding the conversion claims, the 9th Circuit noted that the plaintiffs properly alleged that they were entitled to ownership or possession of the Archive assets when they were able to show that the copyrighted posters at issue were registered in Graham’s personal name (confirming his intent that they be personal property) and therefore would be part of his estate.

The 9th Circuit also held that the copyright infringement claims were improperly dismissed because the plaintiffs sufficiently pleaded enough facts to show that the Assignment was not effective, and that they had a legitimate claim to the copyrights when the BGA Defendants obtained them in transactions following the Assignment.  And finally, the 9th Circuit reversed the district court’s dismissal of the declaratory judgment cause of action for lack of an actual case or controversy, because the issue of the validity of the Assignment and the proper ownership of the Archives were considered to be disputed issues of fact and law that presented an actual controversy.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© McDermott Will & Emery | Attorney Advertising

Written by:

McDermott Will & Emery
Contact
more
less

McDermott Will & Emery on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.