Claims by Soul Singer Against ‘Soul Men' Movie Fail on Appeal to Sixth Circuit Court

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By Anandashankar Mazumdar  

Nov. 1 --Sam Moore, who was the “Sam” in the 1960s soul music duo Sam and Dave failed to establish that a district court had erred in awarding summary judgment on his claims against the makers of the 2008 movie “Soul Men,” the U.S. Court of Appeals for the Sixth Circuit ruled in an opinion designated as not for publication (Moore v. Weinstein Co., LLC, 6th Cir., No. 12-5715, unpublished opinion10/31/13).

Affirming the lower court's award of summary judgment, the court rejected all of Moore's appeals on issues of federal law and Tennessee state law.

Soul Singer Claims Rights in 'Soul Men.'

Samuel David Moore (born Samuel David Hicks in 1935) and David Prater (born 1937) were gospel singers who began singing together in 1961 in Miami. They began recording together as Sam and Dave, and in 1965, they were signed to Stax Records in Memphis, Tenn., where they were combined with Stax's house backing band Booker T. and the M.G.'s.

For the next decade, they released several albums and singles that became hits, the most popular being “Soul Man,” composed by Isaac Hayes and David Porter, which was released in 1967 as a single and on an album titled “Sam and Dave: Soul Men.” After 1971, they recorded intermittently but continued to perform together. In 1981, the duo split for the final time.

Subsequently, Prater found another “Sam”--Sam Daniels--and from 1982, they performed together as “Sam and Dave” or “The New Sam and Dave Revue,” until Prater's death in an auto accident in 1988. Moore continued to perform as “Sam Moore, the Legendary Soul Man,” and similar names. In 2008, Moore participated in a documentary released on disc about Sam and Dave called “The Original Soul Men: Sam and Dave.”

The same year, the Weinstein Co. d/b/a Dimension Films released a motion picture, “Soul Men,” featuring actors Samuel L. Jackson and Bernie Mac playing 1960s soul music singers with a group called Marcus Hooks and the Real Deal. The film was distributed by MGM Studios Inc. and video discs were distributed by Genius Products LLC. Concord Music Group Inc. distributed a soundtrack album, titled “Soul Men: The Original Motion Picture Soundtrack.”

In 2012, Moore, his wife Joyce Ellen Moore, and the SJM Trust sued Weinstein, MGM, Genius Products, Concord Music, and Harvey and Robert Weinstein, alleging trademark infringement. Moore argued that the movie's title infringed his common law trademark interests in the terms “Soul Men,” “Soul Man,” “The Legendary Soul Man,” “The Original Soul Man,” and “The Original Soul Men.” Furthermore, Moore asserted that the film and the soundtrack album infringed the trademarks related to the 1967 album and the 2008 documentary.

Also included were claims of trademark dilution, publicity claims, consumer protection claims, unfair competition, unjust enrichment, and civil conspiracy.

Judge Aleta A. Trauger of the U.S. District Court for the Middle District of Tennessee dismissed Joyce Moore and the SJM Trust from the proceedings and granted summary judgment to the filmmakers on all the claims.

Moore appealed the summary judgment award with respect to the claims of unfair competition and trademark dilution under the Lanham Act, 15 U.S.C. §1125, and the claims under Tennessee state law for trademark infringement, unfair competition, consumer protection, and right of publicity.

First Amendment Trumps Right of Publicity

Judge Deborah L. Cook first adopted the district court's reasoning with the Lanham Act claims and the Tennessee law unfair competition claims and affirmed the lower court with no further analysis.

The court then affirmed summary judgment with respect to Moore's right of publicity claim by applying ETW Corp. v. Jireh Publ'g, 332 F.3d 915, 67 U.S.P.Q.2d 1065 (6th Cir. 2003), which held that the First Amendment protects the use of a person's persona or identity if that expression incorporates “a significant creative component” other than the use of the identity, such that it held “significant transformative elements which make it especially worthy of First Amendment protection and also less likely to interfere with the economic interest” protected by the right of publicity.

In this case, the court said that “Without a doubt, the Movie added significant expressive elements to any purported use of Moore's identity.”

The court also rejected Moore's claim with respect to the advertising material packaged with the CDs and DVDs related to the Dimension Films picture. The references to the “original soul men” were obviously not references to Sam and Dave, the court said.

Turning to the trademark dilution claim under the Tennessee Trademark Act, Tenn. Code Ann. §45-25-513, the court found that Moore had failed to establish that he held rights in a trademark that was famous in the state. The court rejected the argument that Moore's personal fame was sufficient to establish that the asserted trademark was famous.

Finally, the court determined that with respect to his claim under the Tennessee Consumer Protection Act, Moore had failed to establish any triable question regarding whether any consumers in Tennessee were deceived or harmed.

The court thus affirmed the district court's rulings.

The court's opinion was joined by Judge John M. Rogers and Judge Gregory F. Van Tatenhove.


To contact the reporter on this story: Anandashankar Mazumdar in Washington at

To contact the editor responsible for this story: Naresh Sritharan at

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