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Warren Miller sues Warren Miller

post #1 of 10
Thread Starter 
Actually, Warren Miller Entertainment (WME) is sueing Warren Miller for using his likeness and voice in the new Level 1 Productions Film.  Here's a funny article from the Denver Post.  http://www.denverpost.com/search/ci_13479946 
post #2 of 10
If I read this right it seems to be reasonable.  WME bought out Warren Miller and keeps exclusive rights to his likeness name and voice in all of the productions he did for WME.  It appears that stuff from his old films was used without permission.  He can do what he wants now, but he can't use the stuff he sold to what is now WME. It's their property.
post #3 of 10
I think it was Refresh that I saw a few weeks ago at Keystone...assuming that they used some footage that Warren Miller had sold to WME, then they should have gotten permission from WME, BUT, I am not really sure what their damages would be...If anything, it seems to me that having Miller in Refresh helps introduce him to a new demographic that, if anything, might make the WME stuff more valuable. 
post #4 of 10
This looks like the same argument that Atlantic(?) used when they tried to sue John Fogerty for sounding too much like John Fogerty.  The real John Fogerty won that dispute.  Hopefully Warren's attorneys will cite that precedent and this will be dismissed.
post #5 of 10
This is a bonehead decision.

The demographic of Refresh would never consider buying a WME movie, so in reality there is no damage other than the risk of losing control of your IP which I think is pretty small, especially if the agreement was only for past works.

Instead it turns into a horrible PR situation, and I doubt L1P has any money to recover, so you just come off like an asshole bullying a small studio with kids who are your only potential future customers.
post #6 of 10
Originally, the title of the thread was misleading as ski1024 pointed out. However, while not a lawsuit, it's shifting in that direction (at least through arbitration) between Warren Miller and Warren Miller Entertainment. That started when Miller joined the fray by filing third-party support of Level 1 in the case.

As this thread shows, WME is taking a big PR hit in the internet forums (this one is actually kind compared to the others). Realizing that, I think they wanted to get their side of the story out there more and they offered me the opportunity for an exclusive interview with their managing director last night. We talked for almost 30 minutes. He seemed like an OK guy, but you can be the judge as to whether or not you agree with their rationale with the suit. I been just reporting on it giving both sides as fairly as possible, but I did give my personal take over at http://www.epicski.com/forum/thread/86144/warren-miller-entertainment-sues-level-1-productions-for-warren-s-appearance-in-refresh-ski-film (Should we merge these threads by the way?; I vote for the other heading since this one is misleading) As it has turned out, the case has shifted in the direction that I think had more potential traction and relevance in the first place back when I wrote my comments in that other thread.

A bunch of WME's managing director's quotes and an update on the case are here http://tr.im/AIrY A judge is supposed to rule today about Warren Miller and WME going to arbitration and the Level 1 part of the case being put on hold.
post #7 of 10
The other thread's title is more informative, but "Warren Miller sues Warren Miller" is funnier.

On the subject of John Fogerty being sued for sounding like John Fogerty, I think the gist of it was that his new tune "Old Man down the Road" sounded too much like "Run thru the Jungle".  More a case of plagarism than sound-alike voices.  Still hilarious, and a perfect example of why John got so bitter for so long.
post #8 of 10
My favorite case along these lines is Walter S Taylor of Bully Hill wines not being allowed to put his name on his wine because his *father* had sold Taylor Wines to Coca-Cola.  Of course, the notoriety was worth more than the name recognition. 

It is also absurd on the face of it that the name would cause "confusion in the marketplace" which I believe (IANAL) is the legal test.

On the WM front, isn't "confusion in the marketplace" (i.e. have the audience think WME films are by WM) exactly what WME is trying to achieve?
post #9 of 10
I posted today the full text of a phone interview I did with Josh Berman, the owner of Level 1, that's in the legal battle with Warren Miller Entertainment. If you've been following the case, you'll find it interesting. Here's the link http://tr.im/ELYg

My favorite quote from it is below:
Absolutely, I think that’s one of the most ironic parts of this whole situation is that the vast majority of the people out there probably had no idea that Warren had nothing to do with the company. Not to say it was a conscious effort on Warren Miller Entertainment’s part to suggest that Warren was still involved in it, but I certainly don’t think they wanted it to be broadcast in such a defining way. Their actions led to all this coming out in a way that wouldn’t have otherwise come out.
post #10 of 10
I found a great FAQ posted by WME which is pretty thorough regarding the issues:


October 5, 2009 · 7 Comments


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.

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