Thelonious Monk Estate Survives Motion to Dismiss by BreweryBy Jennifer E. Rothman
February 2, 2018
Yesterday, a federal district court in California rejected North Coast Brewing Co's motion to dismiss the right of publicity and false endorsement claims brought by the estate of Thelonious Monk. The estate objects to the company's use of jazz legend Monk's name and likeness on its Brother Thelonious beer.
As I wrote in a detailed post on the case when it was filed, much will turn on the facts of the case and whether permission was granted. It appears that the parties had made some agreement about using Monk's name, but now disagree about the scope of that agreement.
Since my initial post, the estate filed an amended complaint which added a clear false endorsement/trademark infringement claim, and shifted the right of publicity claim to New Jersey law where Monk died. Perhaps after reading my suggestion that California law was limited to those who died domiciled in the state, the estate realized New Jersey law was a better bet for them.
New Jersey courts have not yet held that the common law right of publicity in the state survives death. However, now yet another federal court has concluded that it does. The court here allowed Monk's postmortem right of publicity claim to proceed.
Have to think that some settlement might follow this denial of the motion to dismiss, especially given that these parties appear not to be strangers to one another.