A Dispute as to ‘The Big Man’s’ Intellectual Property Rights

Victory’s Dawn, Inc., et al., v. Clarence Anicholas Clemons, III, et al., No. 21-9744 (D.N.J. February 17, 2022)

This case – out of the District Court of New Jersey – addresses issues as to the intellectual property rights of a decedent which were held in trust.  The intellectual property rights were those of the legendary saxophonist with the Bruce Springsteen and the E Street Band, known as “The Big Man” – Clarence A. Clemons – who passed away in 2011.

Clemons had established a trust (the “Trust”) for the benefit of his four sons. The Trust provides that the trustee has sole control over Clemons’ name and likeness until the youngest of Clemons’s sons reaches the age of 25, set to occur in 2023.

Two of Clemons’ older sons, Charles and Nick, began marketing products using Clemons’ name and likeness without authorization from the Trust.  For instance, in 2017 they set up a limited liability company called “Big Man’s West, LLC” to sell beer, agreed to license the name “Big Man’s Brew” to a third party, sought capital from private equity investors to help fund the beer business, and represented themselves as having control over Clemons’s intellectual property rights even though the Trust had not granted such authorization.  In December 2020, they posted on social media advertising “Big Man Blazed Goods” for sale in Asbury Park, and in January 2021 social media posts they advertised a “2021 Big Man’s Bash.”

Eventually the Trust sued the defendants, Charles and Nick and Big Man’s West, LLC, for violations under the Landham Act and various torts.  The Trust also moved for a preliminary injunction to enjoin the defendants from using Clemons’s name and likeness without authorization.  The defendants never answered the complaint.  Thus, the court granted the Trust’s injunction.

However, the defendants ignored and continued violating the Order, by posting on social media.

The Trust argued that the defendants’ ongoing violations of the Order warranted holding the defendants in contempt and imposing sanctions. The court agreed.

The defendants knew about the Order because it was served on them, and the plaintiff identified at least 11 separate instances of social media postings by the defendants that violated the Order.  Finally, the defendants did not oppose the motion.  The plaintiff requested two types of contempt: a per diem fine for the defendants’ ongoing noncompliance; and reasonable attorney’s fees associated with the filing of the motion.  The court awarded both penalties.