’60s Rock Archive Dispute Revived

The sons of rock ‘n’ roll impresario Bill Graham won partial reinstatement of copyright and conversion claims against the executor of their father’s estate in a dispute over hundreds of iconic rock posters and other memorabilia.

The 9th U.S. Circuit Court of Appeals Friday revived a portion of the lawsuit against the lawyers who handled sale of Graham’s rights to a collection of copyrighted rock posters, photos, videos, audiotapes and the name, “The Fillmore,” and a dozen personal scrapbooks.

His sons, Alexander Graham-Sult and David Graham, alleged they were entitled to pro rata distributions of property from Graham’s estate because they claim the executor undervalued the archives and illegally took copyrights related to the collections.

During the heyday of Graham’s promotion of 1960s rock shows, he featured Jefferson Airplane, the Grateful Dead, Rolling Stones and Janis Joplin, many in his concert venue known as The Fillmore, in San Francisco’s Fillmore District.  Graham died in a 1991 helicopter crash in Northern California.

In 2010, Graham’s sons sued for breach of fiduciary duty, self dealing, failure to exercise due care over the estate assets and secret transfer of intellectual property, against the executor of their father’s estate, Nicholas Clainos, who was the former president of Bill Graham Enterprises and Richard Greene, the lawyer for Clainos.

In addition, they filed claims against William Sagan and Bill Graham Archives for conversion and copyright infringement.

Anti-SLAPP Law

Clainos and Sagan used a powerful California law that allows nearly immediate dismissal of a lawsuit that is intended to limit constitutional free speech or petition rights, which would in this instance include the work of lawyers petitioning a court.

They claimed the Graham brothers’ claims were nothing more than a SLAPP lawsuit, or Strategic Lawsuit Against Public Participation.  SLAPP suits are generally intended to silence critics, rather than win the underlying claim, by running up legal bills and dragging out cases so the critics will give up.

California saw a rise in such lawsuits and in the 1990s passed the anti-SLAPP law, which allows defendants, such as Clainos and Sagan, to have the lawsuit thrown out almost immediately, if they can prove their work was constitutionally protected petition activity.

The district court ruled it was protected activity and dismissed the Graham’s lawsuit and required the brothers to pay the legal fees incurred by Clainos and Sagan.

The appeals court rejected the anti-SLAPP claim.

In the case of Clainos, the panel reinstated the unjust enrichment claim, post-dating assignment of intellectual property, order and receiving money for stock sold after the probate court’s final order.  It also reinstated the breach of fiduciary duty claim, self-dealing and failure to exercise due care in handling probate assets and secret transfer of the intellectual property.

Against Sagan and Bill Graham Archives, the panel reinstated claims for conversion and copyright infringement.

“Striking plaintiffs’ conversion and unjust enrichment claims against Nicholas CLainos was erroneous,” said Judge N. Randy Smith.

The case will go back to U.S. District Judge Claudia Wilken in Oakland.

Case:  Graham-Sult v. Clainos, No. 11-16779



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