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Bonner v. Westbound Records

OPINION FILED JUNE 8, 1977.

LEROY BONNER ET AL., PLAINTIFFS AND COUNTERDEFENDANTS-APPELLEES,

v.

WESTBOUND RECORDS, INC., ET AL., DEFENDANTS AND COUNTERPLAINTIFFS-APPELLANTS. — (WESTBOUND RECORDS, INC., ET AL., THIRD-PARTY PLAINTIFFS AND THIRD-PARTY COUNTERDEFENDANTS-APPELLANTS,

v.

PHONOGRAM, INC., ET AL., THIRD-PARTY DEFENDANTS AND THIRD-PARTY COUNTERPLAINTIFFS-APPELLEES.)



APPEAL from the Circuit Court of Cook County; the Hon. DONALD J. O'BRIEN, Judge, presiding. MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:

The individual plaintiffs and Phonogram, Inc., moved for the issuance of a preliminary injunction against defendant Westbound Records, Inc., pursuant to the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1975, ch. 121 1/2, par. 261 et seq.), the Uniform Deceptive Trade Practices Act (Ill. Rev. Stat. 1975, ch. 121 1/2, par. 311 et seq.), and common law unfair competition, to enjoin the manufacture and distribution of a phonograph record entitled "Rattlesnake." After a hearing on the merits, the circuit court of Cook County issued the preliminary injunction. Defendant appeals, primarily arguing that the requirements for the issuance of a preliminary injunction were not satisfied.

We affirm.

The record discloses the following pertinent facts. On March 24, 1972, Westbound entered into a recording agreement with LeRoy Bonner, Marshall Jones, Marvin Pierce, Ralph Middlebrook, Gregory Webster, Norman Napier, Walter Morrison and Andrew Noland a/k/a Clarence Satchell. Under the terms of the agreement, Westbound employed each person individually and as a member of the musical group known as The Ohio Players, to render musical services at recording sessions arranged by Westbound. Westbound would subsequently manufacture and distribute phonograph records made from the tapes recorded at these sessions. On March 24, 1972, these musicians also signed a publishing agreement with Bridgeport Music, Inc., Westbound's publishing affiliate. Pursuant to these agreements, The Ohio Players wrote and performed songs for Westbound at recording sessions. In June, 1973, Westbound released a phonograph record entitled "Ecstacy," which contained some of the Ohio Players' recorded performances.

On January 8, 1974, five members of the group, Bonner, Jones, Pierce, Middlebrook, and Noland a/k/a Satchell, unilaterally repudiated the agreement. A week later, these five remaining group members, along with James Williams, signed a new agreement with another record company, Phonogram, Inc., and also signed a publishing agreement with Unichappell Music, Inc., Phonogram's affiliate. In March, 1974, the plaintiffs filed the instant action seeking declaratory relief, an accounting, and injunctive relief upon their contention that their agreement with Westbound was void. Westbound filed a counterclaim praying for damages for breach of the agreement, and injunctive relief. Westbound also filed a third-party action against Phonogram, alleging inducement of breach of the agreement.

In July, 1975, after The Ohio Players' unilateral repudiation of their Westbound contract, and after the lawsuit was filed, Westbound released an Ohio Players phonograph record entitled "Climax," which Westbound had compiled from the tapes of recording sessions performed by The Ohio Players prior to their repudiation. A few months later Westbound released a phonograph record entitled "Ohio Players Greatest Hits," a composite of previously released Ohio Players recordings. In late November, 1975, Westbound released an Ohio Players phonograph record entitled "Rattlesnake."

Shortly after "Rattlesnake" was released, The Ohio Players asked Westbound to cease and desist from selling the record album, but Westbound refused. The Ohio Players also complained about the album to the Federal Trade Commission, alleging violations of trade practice rules. After Westbound persisted in selling the album, the plaintiffs amended their complaint against Westbound and moved for the issuance of a preliminary injunction enjoining the further sale of "Rattlesnake."

Plaintiffs' motion for the issuance of a preliminary injunction complains of ten out of "Rattlesnake's" eleven compositions. These compositions fall into four categories. First, the Players allege that four compositions ("Hustle Bird," "Rattlesnake," "Hollywood Hump," "She Locked It") were not peformed by The Ohio Players. Second, it is complained that two compositions ("Gone Forever," "What It is") were incomplete Ohio Players performances to which unknown musicians' performances had been added, thereby misrepresenting The Ohio Players' style. Third, the Players complain that two compositions ("What It Is," "Rooster Poot") were offered to the public as being the original compositions of "L. Crane" and "B. Bain," individuals not known to the Ohio Players, and further, that these two compositions were in fact composed by present and former members of The Ohio Players. Fourth, it is alleged that three compositions ("Spinning," "Varee Is Love," "Laid It") had been previously released to the public, and that their inclusion in "Rattlesnake" is a misrepresentation of new and current Ohio Players performances.

• 1 Westbound's principal arguments on appeal reach the issue of whether the plaintiffs met the rigorous standards for the issuance of a preliminary injunction. In order for a preliminary injunction to properly issue, the petitioner must establish a likelihood of ultimate success on the merits of the case (Kable Printing Co. v. Mount Morris Bookbinders Union Local 65-B (1976), 63 Ill.2d 514, 349 N.E.2d 36), and that there is a need to preserve the status quo to prevent an irreparable injury for which there is no adequate remedy at law. (Armour & Co. v. United American Food Processors, Inc. (1976), 37 Ill. App.3d 132, 345 N.E.2d 795.) In showing a likelihood of success on the merits, however,

"* * * a party is not required to make out a case which will in all events warrant relief at the final hearing. All that is necessary is that the petitioning party raise a fair question as to the existence of the right claimed * * *." (Grillo v. Sidney Wanzer & Sons, Inc. (1975), 26 Ill. App.3d 1007, 1013, 326 N.E.2d 180, 185.)

Westbound first argues that the plaintiffs have not raised a fair question as to the existence of their right to enjoin defendants from further sale of "Rattlesnake."

• 2 Plaintiffs' claim for relief is grounded in the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1975, ch. 121 1/2, par. 261 et seq.), the Uniform Deceptive Trade Practices Act (Ill. Rev. Stat. 1975, ch. 121 1/2, par. 311 et seq.), and unfair competition. The first issue is whether the plaintiffs may obtain injunctive relief under the Consumer Fraud and Deceptive Business Practices Act. This court has already had occasion to rule on this issue in Brooks v. Midas-International Corp. (1977), 47 Ill. App.3d 266, 361 N.E.2d 815, where it was held that individuals were precluded from seeking injunctive relief under the Act since under section 7, only the Attorney General is authorized to bring an action for an injunction. (Ill. Rev. Stat. 1975, ch. 121 1/2, par. 267.) We follow Brooks and hold that plaintiffs herein have not shown the existence under the Consumer Fraud and Deceptive Business Practices Act of a right to be protected by injunctive relief.

Plaintiffs' second theory is that they have a right to injunctive relief under the Uniform Deceptive Trade Practices Act. Section 3 of the Act expressly provides:

"A person likely to be damaged by a deceptive trade practice of another may be granted an injunction against it in accordance with the principles of equity and upon terms that the court considers reasonable. Proof of monetary damage, loss of profits or intent to deceive is not required. * * *

The relief provided in this Section is in addition to remedies otherwise available against the same conduct under the common law or other statutes of this State." (Ill. Rev. Stat. 1975, ch. 121 1/2, par. 313.)

A preliminary injunction may, in the appropriate instance, be granted to enjoin a deceptive trade practice. (Associates for Oral Surgery, LTD. v. Associates for Oral & Maxillofacial Surgery, LTD. (1976), 39 Ill. App.3d 73, 350 N.E.2d 109; Mars, Inc. v. Curtiss Candy Co. (1972), 8 Ill. App.3d 338, 290 N.E.2d 701.) The petitioner must first show that he is likely to be damaged by another's deceptive trade practice. Deceptive trade practices are defined by section 2 of the Uniform Deceptive Trade Practices Act. (Ill. Rev. Stat. 1975, ch. 121 1/2, par. ...


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