1. When did Warren Miller sell the company and what was included?
Warren Miller sold his company and rights to his name, image, voice and endorsement in 1988. That agreement was reaffirmed several times, most recently in 1998. For example, the 1998 restatement of the sale document says:
“Warren Miller Entertainment (WME) owns the exclusive right, in perpetuity, in all media, to the name, the personal endorsement, his voice and the likeness of Warren Miller, only when used with its existing business, and the fruits of its related efforts.”
WME’s existing business has always been, at its foundation, producing and distributing action sports films, building upon the legacy Mr. Miller had established prior to the sale of his company and name.
2. What is or was the Independent Contractor Agreement and how is it different from the sale transaction?
At the time of the sale in 1988, Warren Miller the individual was under no obligation to provide future services to WME. The Independent Contractor Agreement outlined the services Mr. Miller agreed to provide to WME going forward. Under that agreement, WME paid Mr. Miller a substantial fee, over and above the original asset sale, for those services as they were performed. So there were two agreements between WME and Mr. Miller – an agreement granting WME exclusive and permanent rights to Mr. Miller’s name, voice, image and endorsement for use in any media in connection with action sports films and related products, and a second Independent Contractor Agreement regarding services to be provided by Mr. Miller to WME.
3. What is the non-compete clause that Mr. Miller and his representatives refer to and say is expired?
The Independent Contractor Agreement contained a promise by Mr. Miller that as long as he was being paid by WME to provide his ongoing services, he would not perform any services for any other company or individual connected to WME’s marketplace. As a result, once that services agreement expired at the end of 1999, Mr. Miller was free to assist others – even WME competitors – visualize, produce, script and edit films that could potentially compete with WME’s offerings, as long as those activities did not conflict with the earlier, permanent sale of his name, voice, image and endorsement for use in action sports films and related products.
4. Why did WME file its lawsuit against Level 1 in the first place and not Warren Miller?
By filing against Level 1 alone, on the limited basis of the trademark claim, WME was seeking only to stop Level 1 from trafficking in a registered trademark without the consent of the mark’s undisputed owner, WME. WME is obligated by its contracts with sponsors and the trademark laws to police the unauthorized use of its trademarks or risk losing them. When Mr. Miller sought to join the Level 1 case as a party, however, WME discovered that he had misunderstanding of our earlier agreements that raised broader issues than those asserted in the Level 1 case.
5. Why is WME willing to put the case against Level 1 on hold?
WME has decided it must tackle the difference of opinion with its namesake and company founder before advancing the Level 1 case.
6. What about other films in which Mr. Miller appears—why are those not an issue, and why does WME feel the need to protect itself in this instance?
Throughout the years, WME has consented to the use of the Warren Miller name, for identification purposes, in a number of situations when the interested party contacted WME and requested permission in advance. Examples include Swift.Silent.Deep and a privately shown tribute to Mr. McCoy. Level 1’s film presented the first instance in which there has been an unauthorized use of Mr. Miller’s name, image, voice and endorsement in a way that goes right to the heart of the contracts between WME and Mr. Miller. The Warren Miller trademark and brand is the single most valuable asset of WME. If WME does not protect its rights in this case, it risks losing future claims to the trademark — WME’s mainstay — and losing the business it has nurtured for more than 20 years.
7. Why does Warren Miller no longer narrate WME films or participate with WME in the productions?
Over the years, WME has tried. We would like nothing better than to have Mr. Miller be a continuing part of WME; he’s the legacy upon which our business is founded. Unfortunately, we are a small company with limited resources and we are not in a position to meet the financial conditions Mr. Miller requires as compensation for his ongoing services.
8. How has the company grown and prospered in the past nine and a half years since the last services agreement with Mr. Miller ended?
Mr. Miller’s contributions to the ski and film industry are the foundation of WME. The creative team that produces and distributes the Warren Miller feature film every year is a tightly knit family, and comprised of leaders in their respective skill sets within action sports film making. Over the years, we have worked passionately to live up to Mr. Miller’s legacy while continuing to push the limits of extreme action sports cinematography by showcasing the talents of world-class ski and snowboard athletes. As a result, our base of devoted fans and followers has grown along with our ticket sales. Now in its 60th year, WME’s annual feature film tour stops in 240 cities in the U.S. WME also has distribution in Australia, Europe, UK, Canada, New Zealand, among other international markets. That the annual film tour continues to grow and be cheered and applauded by hundreds of thousands of skiers and snowboarders each fall is testament to how hard WME’s team works to make sure the annual “Warren Miller movie” carries this legacy forward.
9. What rights does Warren Miller have to use the Warren Miller name?
According to the agreement between Mr. Miller and WME, Warren A. Miller “is free to use his own name however he desires as long as it does not infringe upon the exclusive rights described in paragraph 2.” Paragraph 2 states: “WME owns the exclusive right, in perpetuity, in all media, to the name, the personal endorsement, his voice and the likeness of Warren Miller, only when used with its existing business, and the fruits of its related efforts.” Beyond that restriction, Mr. Miller is free to use, and has used his name in a broad variety of business and personal ventures. He has written books and magazine articles, started a foundation to teach entrepreneurship, and loaned his name to a ski lodge in Montana, to name but a few of his recent endeavors and accomplishments. Obviously, he is free to use his name for his non-commercial personal affairs. Those who suggest otherwise are simply wrong, as evidenced by the many permissible uses Mr. Miller has made of his name since the end of 1999.
10. What does WME hope to resolve?
We would like to clarify, once and for all, the rights of WME and Mr. Miller under the sale agreement, so there is no confusion moving forward and stop the unauthorized use of our trademarks by Mr. Miller, Level 1 and any other party that might follow the lead they have set. More importantly, we’d like to get back to the business of creating and distributing great ski films.
