Ski film trademark lawsuit put on hold for arbitration involving Warren Miller

October 23, 1:14 PMSkiing ExaminerEric Wagnon

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"Refresh" from Level 1 Productions has ignited a legal battle
    centered around ski filmmaker Warren Miller.  Photo: Level 1

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Related Links

• Warren Miller Entertainment sues Level 1
• Focus could change to contract issues
• Full Oct. 13 statement from Warren Miller
• Full WME positions regarding case

Judge Christine Arguello decided on Tuesday to grant a motion to delay the legal dispute between Warren Miller Entertainment (WME) and Level 1 Productions until the completion of private arbitration between WME and Warren Miller himself. WME sued Level 1 on Sept. 21 for the use of Miller in the film, “Refresh,” and its promotion. No longer personally working with WME, Miller, 85, joined the legal battle by filing a third-party motion on Sept. 25 in support of Level 1.

WME responds to order

The dispute between WME and Miller to be resolved in arbitration goes back to a series of agreements following Miller’s 1988 sale of his name and business to the predecessor of WME. In a prepared response released on Wednesday, WME stated, “we are anxious to legally resolve this difference of opinion, which will also serve to stop Warren Miller from continuing to mislead the public and companies with false statements about WME and our rights and stop the unauthorized use of WME’s trademarks by Warren Miller and any other party that might be lead to believe that he is free to re-sell those rights.”

Warren Miller declares creative disagreements with WME, questions company's statements

Since the start of the legal conflict, Miller has been outspoken in distancing himself from WME. “For so many of you who may not already know, I would like to clarify that I am not, nor have I been involved with Warren Miller Entertainment (WME) or their ski movies for quite some time now,” Miller said in statement released on Oct. 13. “When I sold the company to my son in 1988, I was excited about staying involved and helping carry the company forward. However, the company has twice since been sold, and it has been six years since I have had anything whatsoever to do with the films bearing my name.

“I stopped working with WME because our ideas on what the ski films should be weren’t on the same page, and they demonstrated that they didn’t want my involvement in making ski films any longer,” Miller added. “WME’s statement that they ‘would like nothing better than to have Mr. Miller be a continuing part of WME,’ but cannot because they are ‘a small company with limited resources and we are not in a position to meet the financial conditions Mr. Miller requires’ is really absurd.”

For WME films in recent years, the company has inserted old audio clips of Miller that WME owns. WME is owned by Bonnier Corporation, a large media conglomerate that is also the parent company of Ski and Skiing magazines.

Judge rules for different sides on various aspects of case

Arguello made decisions on several motions from each side in her order this week. She rejected WME’s opposition to Miller’s third-party involvement in the initial trademark case against Level 1. She ordered that Miller’s involvement is warranted, because “a finding of trademark infringement or infringement of a right of publicity against Defendant (Level 1) would certainly impair or impede Mr. Miller’s interests in the aforementioned Properties (of his name, voice, image, or likeness).”

On the other hand, the judge did accept WME’s motion to stay the trademark dispute between WME and Level 1 pending private arbitration between WME and Miller. Once a decision is made in the private arbitration, WME must notify the court within ten days to restart the case against Level 1.

Lawyers for Level 1 had argued for dismissal of the original case in part because the continued uncertainty caused by a delay for arbitration would create “ongoing injury” for Level 1. Rejecting precedents from other courts cited by Level 1’s side, Arguello wrote, “courts in the Tenth Circuit have long held that actions must be stayed, rather than dismissed, pending arbitration.

“In the instant matter, the Court sees no reason to depart from this well-established Precedent,” the judge stated. “Though Defendant (Level 1) is not a party to the contracts between Plaintiff (WME) and Mr. Miller that contain the arbitration provisions, the instant litigation and the “Plaintiff-Mr. Miller” contracts both concern Mr. Miller’s use of his name, image, and likeness for commercial, non-commercial, and/or fair use purposes. Thus, the extent to which Mr. Miller may use and license/assign the rights to use his name, voice, image, and likeness is inextricably linked to the issue raised in the instant case.”

The Tenth Circuit is the appeals court for the District of Colorado, the federal jurisdiction hearing this case. Incidentally, Arguello, a judge with a Hispanic heritage, was considered by the Obama administration for the Supreme Court position recently filled by Sonia Sotomayor.