WME v. Level 1 - In Depth (Updated Oct. 5)

On September 21st, 2009, the biggest ski media lawsuit in recent history began when Warren Miller Entertainment filed suit against Level 1 Productions.

Since then, there has been an unprecedented amount of buzz, speculation and, frankly, shit-talking on the internet and within the industry. There seems to be as much confusion as anything about what’s going on and why, so here are the basics of what is publicly available right now:

There are three main parties involved in the lawsuit:

Plaintiff: Warren Miller Entertainment, Inc.
Warren Miller Entertainment (WME), not to be confused with Warren Miller the person, purchased Warren Miller Productions in 1988. It is owned by Bonnier Corporation, which employes about 1,000 people and has annual revenues of more than $350 million. Bonnier Corp. is, in tern, owned by Sweden-based Bonnier Group, which had earnings of about $4 billion in 2008.

Defendant: Level 1 Productions
Level 1 Productions, started and run by Josh Berman, is a Denver-based film company that started in 1999. Level 1 has one employee and annual net revenues of less than $100,000.

Third party intervenor: Warren Miller, the person
Anyone who has ever skied knows who Warren Miller is. He has been making ski movies since 1948, and sold his company to WME in 1988. He is a legend and pioneer in ski filmmaking.

September 21, 2009

Warren Miller Entertainment, Inc. (WME) filed a lawsuit in US District Court for the District of Colorado against Level 1 Productions (Level 1).

The filing is, of course, too long to reprint here, but key points are that:

“WME owns the exclusive right, in perpetuity, in all media, to the name, the personal endorsement, use of voice, and the likeness of Warren Miller, when used with its existing business, and the fruits of its related efforts.”
WME is the owner of a registered trademark for the mark WARREN MILLER.
WME has used WARREN MILLER as a trade name and trademark for over 20 years.
WME has expended millions of dollars in advertising efforts in connection with the WARREN MILLER name and marks.

Complaints against Level 1 include:

Since the premiere of Refresh in Denver on September 11, 2009, Level 1 has used the name Warren Miller to promote its films as a “surprise” guest.
Level 1 tweeted about quotes from Warren Miller being on level1productions.com.
The audience at the premiere of Refresh at IF3 was chanting “Warren! Warren!”
Warren Miller used recognizable phrases like “If you wait until next year to do it…”

The suit states that Level 1 “deliberately and willfully used the Warren Miller name and marks” in Refresh and used such to advertise, without WME’s permission. The main point circulating on the internet since the lawsuit became public is that WME states: “Level 1’s unauthorized use… falsely indicates to consumers that Level 1’s products… are in some manor connected with” WME.

WME asserts that Level 1 is receiving the benefit of WME’s efforts to promote Warren Miller for its own gain. It also asserts that Level 1 has and will damage WME’s brand by misrepresenting the Level 1 movie as a WME production.

And so WME is asking the courts to:

Stop Level 1 from showing, selling or marketing the movie.
Stop Level 1 from using the name Warren Miller or anything “confusingly similar.”
Force Level 1 to destroy all copies of Refresh and all materials related to it.
Investigate into how much profit Level 1 has gained “resulting from its acts of trademark infringement.”

5. Force Level 1 to pay WME damages incurred by its brand, and legal fees spent to sue, with interest.

On the same day as filing the lawsuit, WME also filed a temporary restraining order against Level 1 in order to stop Level 1 from premiering Refresh in Boulder on September 23.

September 22, 2009

The case of a temporary restraining order (TRO) was brought to court on September 22, before Level 1 was able to respond. The TRO could be enforced by the judge without hearing from Level 1, if some factors were realized, such as it being obvious WME would win the lawsuit or that the premiere could cause harm to the public.

The court did not find that these, among other things, were necessarily true, and so the TRO could not be granted on that basis. The only basis left, then, was the claim of copyright infringement.

The court stated that it was hesitant to give strong protection to trademarks that are of proper names, i.e. Warren Miller. The court also found that Level 1 “should be entitled to identify [Warren Miller] to the public and advise the public that Mr. Miller does, in fact, appear in their film.” It went on to say that “These uses of Mr. Miller’s name are entirely consonant with the public’s interest in being able to truthfully identify a specific person.”

Judge Marcia Krieger denied the TRO, although WME is able to file another TRO and argue it again.

September 23, 2009

Level 1 premiered Refresh at the Boulder Theater in Boulder, CO. It was the first public showing of the film after the suit was filed.

September 24, 2009

Most people have read this by now, but on September 24, both Level 1 and WME issued statements:

“Level 1’s interview, and subsequent inclusion of Warren Miller in our new film, “Refresh,” was motivated by our desire to create a meaningful film that helped to bridge the generation gap and do something good for the sport of skiing.

Level 1 has never, nor will ever, have any intention or desire to deceive our audiences into thinking that our films are in any way related to Warren Miller Entertainment, or further, that we are trying to capitalize on the brand and image created and purveyed by Warren Miller Entertainment. To the contrary, we have always gone out of our way to promote the Level 1 brand and our films, as entirely unique within the skiing community.

Its disappointing that Warren Miller Entertainment would seek to put a stop to something that in all reality should serve to increase the reach and scope of the Warren Miller name, and in turn, the value of their own brand and films.

We’re very pleased by the Judge’s denial of Warren Miller Entertainment’s Motion for Temporary Restraining Order.” – Level 1

“On September 21, 2009, Warren Miller Entertainment (WME) filed a lawsuit against Level 1 Productions seeking to stop Level 1’s intentional misuse of WME’s registered trademarks to promote its latest film release.

Beginning with the pioneering work of ski and film icon Warren Miller, and for the last 20 years under WME’s stewardship, WME has invested significant resources in the development and preservation of the Warren Miller brand. The careful and creative use of that brand, and the annual Warren Miller ski films that form the centerpiece of WME’s business, have played an integral role in establishing and defining the ski film industry. Under the trademark laws, but even more critically under a common sense of fairness, WME believes it imperative to retain control of the use of the Warren Miller brand.

WME will continue its longstanding support of the ski film industry and its affinity with the community of outdoor enthusiasts, and assures its fans and followers that the regrettably necessary legal steps taken will not adversely affect WME’s support of, and collaboration with, independent film companies and filmmakers.” – WME

September 25, 2009

Warren Miller, the person, and his personal company, Warren Miller Company, put himself in the mix as a “third party intervenor.”

The basis of Miller’s intervention is that the lawsuit is misdirected. He argues that it is not a case of copyright infringement between WME and Level 1, but a contractual case between WME and Miller, which, according to Miller, has no merit.

The court document that Warren Miller has filed, which attempts to inject himself as a third party intervenor, states:

WME “seeks to mislead this Court in order to obtain improper injunctive relief against” Level 1. It continues, “This is not a case about trademark infringement by Level 1. Rather, this is a case about… Warren Miller’s right to fairly use his name, voice and likeness as he chooses, including as a continuing contributor in ski films such as Level 1’s Refresh.”

It then goes on to say that the noncompete between WME and Miller expired in 1999, and thus he is free to do as he pleases, which is “exactly what Warren Miller did in authorizing Level 1 to use his name, voice and likeness…,” according to his filing.

WME has not yet responded to the filing.

September 29, 2009

A court hearing was held on September 29 for planning purposes. Judge Agruello has set October 22 as the date that WME will argue its case.

According to the Aspen Daily News, the judge has asked WME to prove:

That there is actually public confusion about who released Refresh, WME or Level 1.
That Warren Miller was wrong in lending his name and voice to the movie Refresh.
Why this is the first time WME has filed suit, even though Warren Miller has used his name in other public settings, such as commercials and ski films.

WME is also arguing that Warren Miller, the person, should not be granted status in the suit. WME must respond this week, and the judge will make a ruling on Monday (October 5).

We asked Warren Miller today why he decided to involve himself in the case. Here is his response:

“I consider Josh my friend and I have been very impressed with his efforts as a film maker, and more so as a human being. He is a very nice young man, and I was honored to oblige his request to participate in Refresh. I have been invigorated by working with his group, whose passion for skiing matches my own.

WME made clear to me long ago that they did not want me involved in their films â€“ so Iâ€™ve essentially cut all of my ties to them. I have a legal and moral right to freely use my name, voice, and likeness as I choose. By suing Josh, I feel that WME is challenging my rights as a person and public figure. I will not stand by and let a young, talented artist like Josh get shoved around by a group that, in my opinion, has no genuine regard for the fans.” — Warren Miller

October 5, 2009

According to a post on its blog, Warren Miller Entertainment will put its case against Level 1 Productions on hold while the company responds to Warren Miller’s attempt to join the case.

The blog post says:

“In regards to Warrenâ€™s claims, which raise broader issues than those described in the initial legal action against Level 1, WME has moved to put the Level 1 case on hold while it arbitrates or resolves the difference of opinion with its namesake and company founder, Warren Miller.”

Full story here.

WME v. Level 1 – In Depth (Updated Oct. 5)