On July 26, the lawyer for 1960s R&B singer Sam Moore will make the case in the U.S. Court of Appeals in Cincinnati (Sixth District) that his client's 2009 lawsuit against the Weinstein Co. and its principals, Bob and Harvey Weinstein, over their 2008 film "Soul Men" should still get a trial.
Moore and his manager-wife Joyce Moore appealed and, next Friday, Lutzker will argue before the appellate court that the hard-fought legal battle should resume in Tennessee.
"We have to protect and defend his name and his trademark, his legacy and his rights," said Joyce in explaining the decision to pursue the case. "I believe that Sam's ability to earn a living at his craft has been damaged," she says of her husband, who, at 77, continues to perform. It's almost like the unintended consequence of this made him a leper. Even at 77, he is still a brilliant performer, and it's infuriating and heartbreaking to see how this has affected his work."
Moore was the Sam of Sam & Dave, the Stax/Atlantic singing duo that scored a Grammy-winning number-two hit with the 1967 song "Soul Man." (The song, which was penned by the late Isaac Hayes and his songwriting partner David Porter, also became a hit for Blues Brothers Dan Aykroyd and the late John Belushi in 1979.) Sam & Dave also had hits with "Hold On, I'm Coming" and "When Something Is Wrong with My Baby."
In 2009, Moore and his wife sued the Weinsteins, claiming that "Soul Men" - which starred Samuel L. Jackson and Bernie Mac as two Memphis soul singers who reunite after falling out - borrowed heavily from the singer's life and legacy without compensating him. (Moore and Prater's partnership was a tumultuous one. They broke up and got back together more than once, and even battled each other legally when Prater, who died in 1988, began performing as Sam & Dave with another singer, Sam Daniels.
The Weinstein Co. won the initial battle in May 2012 when its motion for summary judgment was granted. The judge overseeing the case noted that "Soul Men," which has earned $12.3 million worldwide, according to Box Office Mojo, "contains no direct references to 'Sam & Dave' or 'Sam Moore.' Sam Moore's name is never mentioned in the movie, nor does the movie contain any photographs or images of Sam Moore or Sam & Dave." The decision also observed: "The movie begins with a disclaimer that 'The persons and events in this motion picture are fictitious.'"
Lutzker contends in his appeal, however, that the decision was based on an "improperly narrow" interpretation of the laws that govern the rights of publicity and trademarks.
"Our point is that the law says other indicia can be factors as well," Lutzker told Variety, noting, for instance, that Moore has long been associated with and famous for the terms "Soul Man" and "Soul Men"; that another Sam & Dave hit, "Hold On, I'm Coming" is performed by Jackson and Mac in the movie; that Isaac Hayes, who co-wrote a number of Sam & Dave hits and a number of sidemen who performed with the duo have cameos in that movie; and that Jackson's character even dresses in the Ray-Ban Wayfarer sunglasses and stingy-brim hat that Moore wore.
"The movie is an homage to Stax Records. It's a Memphis-oriented film," said Lutzker. "They don't use Sam Moore's name in the movie, but by making it about a '60s soul duo and using 'Soul Men' in the title, they are identifying Sam Moore."
"Our position is that the factual record is strong enough that the judge should not have granted the summary judgment."
If Lutzker can sway the appellate court, the suit could go to trial in Tennessee, where it originated.
Lutzker's appeal indicates that Harvey Weinstein did make some attempt to involve Moore in the project. On Jan. 15, 2008, he emailed his brother Bob, the head of Dimension Pictures, which produced the film, writing: "You have to have Sam participate in this movie."
According to Moore's wife, Weinstein Co. representatives did call with a last-minute offer for a cameo role for Moore, but it came with strings attached. "A day or two before they shot a car-crash scene in Memphis, they offered Sam a cameo role for $1,000, but they said that we had to get down there immediately" - the couple lives in Arizona -"and they also wanted Sam to sign a complete and full release of any and all claims and rights that he had to the movie," Joyce explains, adding: "Needless to say, we never even went to look for a suitcase."
The Weinstein Co. declined to comment.
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