Which One’s Pink? The One Suing Local Tribute Band!
Local tribute bands Pink Froyd and Pink Floyd Experience are both fronted by guitarist Tom Quinn, with both bands usually featuring the same local players. “Our first [Pink Froyd] gig was in 1995,” says Quinn, who was inspired to form the groups after seeing the real Pink Floyd at Jack Murphy Stadium in April ’94. “If I wasn’t playing Pink Floyd covers, I can’t imagine me doing any other tribute.”
Formed in 2003, the Experience stage show includes $2.5 million worth of production equipment, mirror balls, a circular movie screen, animated projections (marching hammers, fornicating flowers, et al), and even a 12 foot-long inflatable pig, with everything scaled down from but directly based on Pink Floyd's actual stage setups.
Singer Graham Heath was with Pink Froyd from 1999 through September 2010. Heath also sang with the Pink Floyd Experience from early 2004 through September 2010.
Heath is suing Quinn and band reps Annerin Productions and Jeff Parry Promotions on seven counts, including:
Common law appropriation of name or likeness
Breach of contract
Termination in violation of section 6310(A) CA Labor Code and CA OSHA/Occupational Safety and Health Act
Heath’s main problem revolves around his claim that Quinn and fellow band mates liked smoking pot in their hotel rooms, with his complaints resulting in Termination in Violation of Labor Code and Cal-OSHA.
In a complaint filed May 13, Heath's lawyers say:
As a traveling musician working for Defendants, Plaintiff was required to stay in hotel rooms with other band members while on tour. During mr. Heath’s employment, his band mates/co-workers used drugs in the hotel room while on tour, potentially causing death or serious injury to him. During Mr. Heath’s employment, he made numerous oral complaints to Quinn that he was not comfortable with drug use, specifically marijuana, in the hotel room that he was in during the tour.
At the time Plaintiff complained to Quinn, he was concerned that his exposure to marijuana woiuld affect his health, especially because he had severe allergies and would also expose him to potential criminal liability. Despite Mr. Heath’s repeated oral complaints, Quinn did nothing to stop the use of marijuana in the hotel rooms. Shortly after Mr. Heath began complaining about the open use of drugs in the hotel room, Mr. Heath was suddenly and summarily terminated.
During tours prior to September 2010, Plaintiff complained to Quinn about the other band members and manager’s use of illegal drugs in the hotel rooms provided by Defendants for Plaintiff. On or about September 28, 2010, Defendants through their agent Quinn, summarily and without warning fired Mr. Heath in retaliation for his complaints about the use of illegal drugs.
As to the allegations of Common law appropriation of name or likeness:
None of the Defendants had any contractual rights to use any part of Mr. Heath’s persona after his employment ended. After terminating Mr. Heath, the Defendants continued using Plaintiff’s name, image, and vopice on their website and in their promotional materials to advertise and solicit business for the musical group’s future performance long after Mr. Heath was fired. When Plaintiff became aware of Defendants’ continued use of his name, image, and voice to market their productions, Mr. Heath issued multiple written cease and desist demands to Defendants requesting that they discontinue the use of his name, image, and/or voice.
Eventually the PF website, after repeated cease and desist demands, finally removed photographs of Mr. Heath on October 19, 2010, but Mr. Heath is informed and believes that they continue to use his voice unabated. Despite Mr. Heath’s repeated cease and desist demand, PFE (as opposed to PF) is believed to have finally stopped using Mr. Heath’s name on or about November 1, 2010, but has continued to use photographs of Mr. Heath as well as recording of his voice to market their events.
Defendants’ conduct, as alleged herein was oppressive, malicious, or fraudulent as defined in Civil Code 3294. Accordingly, Plaintiff also requests the award of punitive damages in an amount sufficient to deter Defendants from engaging in similar future behavior according to proof at trial.
As for the Breach of Contract:
At the conclusion of the previous tour, by means of oral communication, Defendant Annerlin requested that Mr. Heath hold tour dates open six (6) months in advance for the period February 2, 2011 – April 9, 2011, with the understanding that Mr. Heath would be paid by Defendants to go on tour during that period as a singer in one of the defendants’ musical groups. In reliance on these dates, Plaintiff refrained from seeking alternative employment.
On or about September 28, 2010, less than two (2) months before the tour was supposed to start, Defendants summarily and without warning fired Plaintiff. As a direct and proximate cause of the acts of the Defendants in breach of contract, and his reliance upon Defendants’ prior representations that they intended to honor the contract, Plaintiff has suffered damages subject to proof at trial.
There’s also the allegation of defamation:
Mr. Heath is informed and believes that the photographs and recordings published by Defendants were the worst possible images of Mr. Heath available to Defendants at the time. Mr. Heath is informed and believes that Defendants intentionally chose to publish the most embarrassing, and humiliating images and recordings of Mr. Heath for the purpose of placing Mr. Heath in a false light.
… Defendants intentionally used Mr. Heath’s name, image, and/or voice, using poor quality images and recordings to incorrectly reflect Mr. Heath’s talent and abilities...
…in addition to his general embarrassment, Plaintiff is informed and believes that he was damaged by these false publications both in his pursuit of substitute employments, and in the loss of general public esteem.
Unaddressed is why Quinn would be benefiting from using Heath’s image and recordings to promote the band, and yet would purposely use crappy pics and sounds.
Heath is seeking damages:
For general and specific damages in an amount according to proof, but in excess of $25,000.
For statutory damages where available
For injunctive relief preventing Defendants from engaging in similar unlawful discrimination in the future.
As well as litigation costs and attorney fees.
Well, as the REAL Pink Floyd have demonstrated, lawsuits seem part and parcel when it comes to being Pink.
At least Heath isn’t seeking custody of the inflatable pig…..
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