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An original member of the rock band Jefferson Starship can pursue a breach of contract claim against a group currently touring under the name, according to an Aug. 11 court ruling ( Chaquico v. Freiberg , 2017 BL 282140, N.D. Cal., No. 17-2423, 8/11/17 ).
A California federal district court kicked out a claim that the current band is violating federal law by using historical photos and album covers that include images of Craig Chaquico, the former member who is suing the band. But Chaquico will get a chance to refile his complaint to include some facts to support that the pictures are misleading the public into thinking that he is associated with the performances.
The use of band names and images going back decades is an ongoing intellectual property law problem, particularly when there are no original band members left or there are disputes between former members.
Several states, including California, have passed what are known as truth in music advertising laws that regulate who can use old music group names. But Chaquico instead has asserted state law claims for violation of his right of publicity and deceptive business practices.
The current Jefferson Starship band says it can use the old pictures based on a 1989 court ruling involving movie star Ginger Rogers. In Rogers v. Grimaldi, the U.S. Court of Appeals for the Second Circuit said that the First Amendment allows names and images of real people to be used in connection with an expressive work unless there is no artistic relevance and consumers aren’t being explicitly misled as to whether the person is connected with the work.
Chaquico’s lawyer, David Swift of Kinsella Weizman Iser Kump & Aldisert LLP, Santa Monica, Calif., said that he plans to file an amended complaint re-asserting the false association claim.
“It is important to Mr. Chaquico to protect the legacy of Jefferson Starship by preventing unauthorized bands, like Defendants in the case, from using the iconic name,” Swift said in an email message.
The defendants and their counsel didn’t immediately respond to Bloomberg BNA’s request for comment.
The court said that Chaquico could press forward with his breach of contract claim to the extent that the band’s name has been used since founding member Paul Kantner’s death in 2016.
Judge James Maria-Elena issued the court’s ruling. Kinsella Weitzman Iser Kump & Aldisert LLP represented Chaquico. Coblentz Patch Duffy & Bass and Leavens, Strand & Glover LLC represented the current band members.
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