The sons of legendary concert promoter Bill Graham cannot prove their rights to concert posters and other San Francisco Bay Area rock memorabilia they say they were swindled out of by Graham’s estate executor, the Ninth Circuit ruled Wednesday.
Graham famously produced concerts for the Grateful Dead, Jefferson Airplane, Janis Joplin and other 1960s rock legends at his Fillmore concert venue in San Francisco, later known as the Fillmore West. He died in a helicopter crash on Oct. 25, 1991.
David and Alex Graham claim they never knew the memorabilia, which included concert posters for the Rolling Stones and Bob Dylan and the trademark to the Fillmore concert venue, had been sold to SFX Entertainment in 1997. SFX later sold its interests to Clear Channel Communications.
Graham’s sons took estate executor Nicholas Clainos to court in 2010 on claims of conversion and breach of fiduciary duty, after finding out a year earlier that Clainos had assigned all the rights and title to Graham’s intellectual property to Graham’s company Bill Graham Entertainment. Clainos had also backdated the document from the end of August to Aug. 1, ahead of the final probate hearing.
In 2015, U.S. District Judge Claudia Wilken granted Clainos summary judgment, ruling the 1997 sale was legitimate, with each son receiving $778,000 and a 10 percent stake of the newly formed Bill Graham Presents Inc.
A three-judge Ninth Circuit panel affirmed Wilken’s decision on Wednesday, following a hearing in November.
“The posters promoted the companies’ concerts. There is no evidence Graham paid any poster artist from personal funds,” the panel wrote in an unpublished opinion. “To the contrary, there is substantial evidence Graham’s companies paid some poster artists and considered posters as an expense in determining each show’s profit. Because plaintiffs cannot show that they have any right to possess the poster copyrights, their claim for conversion of the copyrights fails as a matter of law.”
The judges also ruled that the Graham brothers have no claim over the trademark for “The Fillmore,” finding that even if Graham owned the trademark when he died, it would have been included in the sale of Bill Graham Enterprises. They also ruled Clainos did not breach any fiduciary duty, and upheld Wilken’s order requiring David and Alex Graham to pay defendants $240,000 in legal fees.
David and Alex Graham’s attorney, Therese Cannata with Cannata, Ching and O’Toole, did not return an email requesting comment. The Ninth Circuit panel included Circuit Judges Johnnie Rawlinson and Jay Bybee, and Chief U.S. District Judge William Smith of the District of Rhode Island, sitting by designation.