Legendary concert promoter and music empresario Bill Graham died in 1991, but his sons are still locked in a bitter legal fight with the executor of his estate over his rock memorabilia, including hundreds of concert posters and scrapbooks.
“Our clients have witnessed nearly a decade of litigation and it’s been hard. They found out a person they really trusted, their fiduciary, utterly betrayed their trust and arranged to sell things that had belonged to their dad,” attorney Therese Cannata with Cannata, Ching and O’Toole, who represents David and Alex Graham, the sons of legendary rock promoter, told Courthouse News on Tuesday.
Graham famously produced concerts for the Grateful Dead, Jefferson Airplane, Janis Joplin and other 1960s rock legends at his Fillmore concert venue in San Francisco, later known as the Fillmore West. He died in a helicopter crash on Oct. 25, 1991.
David and Alex Graham claim they never knew the memorabilia, which included concert posters for the Rolling Stones and Bob Dylan and the trademark to the Fillmore concert venue, had been sold to SFX Entertainment in 1997, which in turn sold it to Clear Channel Communications.
They took estate executor Nicholas Clainos to court in 2010 on claims of conversion and breach of fiduciary duty, after finding out in 2009 that Clainos had assigned all the rights and title to Graham’s intellectual property to Graham’s company Bill Graham Entertainment. Clainos had also backdated the document from the end of August to Aug. 1, ahead of the final probate hearing.
On Tuesday, a three-judge panel of the Ninth Circuit convened to hash out who actually owns the rights to the posters.
Cannata said regardless of the substantial payout they received from the sale of Bill Graham Entertainment to SFX, the brothers were still cheated out of their rights to their father’s intellectual property.
“We cannot say that fiduciary law will be turned on its head and if a fiduciary happens to preside over a sizable estate, that that fiduciary can escape responsibility for not passing forward assets and concealing them and engaging in self-dealing for his own personal benefit, merely because the beneficiaries of that estate inherited a great deal of money,” Cannata said.
This isn’t the first time the brothers have faced off with Clainos in appellate court. In 2013, a three-judge panel reinstated the lawsuit after U.S. District Judge Claudia Wilken dismissed it as outside the statute of limitations in 2011.
Wilken granted Clainos summary judgment in 2015, ruling that the 1997 sale was legitimate, with each son receiving $778,000 and a 10 percent stake of the newly-formed Bill Graham Presents Inc. Wilken also noted Clainos presented significant evidence that the elder Graham was acting as a representative of his company Bill Graham Entertainment when he commissioned the posters.
“We were surprised, unhappy, and obviously very disappointed that the trial judge in the district court decided that motions for summary judgment should be granted when there are disputed issues of fact that people should fight about in front of a jury,” Cannata said. “We’ve been fighting just to get our day in court.”
Clainos’ lawyer Zia Modabber with Katten Muchin Rosenman told the panel Tuesday that the posters were created to promote concerts and are thus owned by the Bill Graham business, not by Bill Graham the individual.
“Those posters were not created to hang in the living room of Mr. Graham’s home,” Modabber said. “These assets were created for the business. The business is the owner. There is not a shred of evidence that Bill Graham personally never paid a dollar to any poster artist.”
He said many of the artists Graham commissioned have testified they were paid with company checks.
The Graham brothers have the burden of proving that Graham paid for each poster out of his own pocket, Modabber added.
“There’s no evidence that Bill Graham or anybody paid for them at all,” he said. “For every one of these posters they need to come forward that Bill Graham the individual paid for them.”
Cannata told the panel that would be impossible “unless we have a video camera that can go back to 1965.” She contended Graham instructed the artists to inscribe “copyright Bill Graham” on the disputed posters, which goes to the presumption of ownership.
The panel of Circuit Judges Johnnie B. Rawlinson and Jay Bybee and visiting Chief U.S. District Judge Edward Smith of Rhode Island took the arguments under submission.
Cannata said the case is not just about the poster copyrights, but about scrapbooks, and mementos of their father. “Much of the archive we’re fighting about was Bill Graham’s life – he was a Holocaust survivor and he treasured every moment of his life,” Cannata said.
Born in Berlin, Graham fled Germany in 1941 at the age of eleven as part of a Red Cross mission to help Jewish children escape the Nazis. He landed in New York, where he lived with a foster family. The hippie movement lured him to San Francisco, and he made his mark as a concert promoter at the Fillmore theater and eventually as a music producer and promoter of some of the world’s most famous rock groups.
Using memorabilia from their own collection, Dave and Alex Graham have put together a traveling retrospective on their father’s life and career titled “Bill Graham and the Rock & Roll Revolution.” It’s since been featured at the San Francisco Contemporary Jewish Museum, the Illinois Holocaust Museum and the Skirball Cultural Center in Los Angeles. There is also a planned stop at the Rock and Roll Hall of Fame and Museum in Cleveland.
“It’s been a very significant journey for them,” Cannata said of her clients. “Dave and Alex have been subjected to a seven- plus-year epic litigation battle against someone who had done something terrible, but on the other hand they’ve been able to get this project going for their dad.”
It’s a project they’d like to build on, pending the appellate court’s ruling.via Courthouse News Service