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Rocker's Video Deposition to Get Little Play



By Mark Hamblett

New York Law Journal

July 2, 1999



The Artist Formerly Known as Prince is about to make a video, but he has taken legal steps to ensure it will have a very small audience.



The video, a taped deposition sought by the company the rock star has sued for copyright and trademark infringement, will not be shown on the company's Web site, thanks to an order by a federal judge.



Southern District Judge Lewis A. Kaplan has ruled that parties to the action, Paisley Park Enterprises v. Uptown Productions, 99 Civ. 1439, must agree on a video custodian who will ensure that a tape of the deposition is used for litigation purposes only.



Paisley Park, the company of the man originally known as Prince Rogers Nelson, sued Uptown Productions earlier this year for unauthorized use of the reclusive star's name, likeness and other intellectual property in Uptown's unofficial fan magazine and Web site.



The suit contended that Uptown had "created an entire business based on exploiting (Nelson's) image and persona" to its own economic benefit.



Uptown filed a counterclaim alleging abuse of process and sought declaratory relief.



In May, Uptown gave notice to Mr. Nelson of a deposition that would be both audiotaped and videotaped.



Attorneys for Mr. Nelson opposed the videotaping, saying the defendant would use it for the very reason the lawsuit was filed in the first place: The company would publish it on its Web site and generate even more publicity and business through the unauthorized use of the rock star's name and likeness.



Publication of the videotape, they argued, was sure to follow, because the pleadings in the case, the notice of deposition and press releases concerning the case have already appeared on-line.



Judge Kaplan found that two arguments favored the defendant. First, that Mr. Nelson was the one who brought the lawsuit, a situation quite different from the facts in the case of Westmoreland v. CBS Inc., 584 FSupp 1206 (D.D.C. 1984). In that case, which involved a libel suit by former U.S. Army General William Westmoreland over a television news broadcast about the Vietnam War, former CIA director Richard Helms, not a party to the suit, successfully blocked the videotaping of his deposition.



Second, the judge said, there is a presumption in favor of videotaping depositions because showing a tape to a jury is "superior to readings from cold, printed records."



For Litigation Only



But Judge Kaplan was reluctant to translate those two arguments into a justification for allowing the defendant to use the videotape for "purposes entirely unrelated to the litigation." He said that a videotaped deposition "is not intended to be a vehicle for generating content for broadcast and other media."



And while there are exceptions, he said, "the judicial branch of government, insofar as it deals with civil cases, is a system for the resolution of what are usually private disputes."



"While many members of the public have an interest in every imaginable detail about the life of a rock star, virtually all have an interest in ensuring that everyone in our society have access to a fair, impartial judicial system without having to pay too high a price of admission in the form of the surrender of personal privacy," the judge said.



Judge Kaplan then ruled that the parties will select the videographer jointly, and only one copy of the deposition will be made. The parties will also select a "mutually agreeable non-party custodian" who will attend the deposition and be responsible for safeguarding the tape. The custodian, he said, will be answerable to the court.



Michael Elkin and Teena Kim, of Thelen Reid & Priest, represented Paisley Park. David Lee Evans and C. Alex Hahn, of Hanify & King, represented Uptown Productions.