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RSR ART, LLC v. Bob Ross, Inc.

United States District Court, E.D. Virginia, Alexandria Division

March 31, 2019

RSR ART, LLC, Plaintiff,
v.
BOB ROSS, INC., Defendant.

          MEMORANDUM OPINION

          Hon. Liam O'Grady Judge

         This lawsuit arises from an ownership dispute regarding Bob Ross's intellectual property and right of publicity. Both parties filed motions for summary judgment. The motions were fully briefed, and the Court heard oral argument on September 7, 2018. Upon consideration of the pleadings, the oral arguments, and the evidence in the record, the Court concluded that summary judgment for Defendant was appropriate and issued a short order to that effect on September 17, 2018 in recognition of the case's pending trial date. Dkt. 73. This Memorandum Opinion follows to explain the basis for the Court's Order.

         I. BACKGROUND

         Bob Ross was a well-known painter, art instructor, and television host who died in Florida on July 4, 1995. Plaintiff RSR Art, IXC was founded by, among others, Bob Ross's son, Robert Stephen Ross. Defendant Bob Ross, Inc. ("BRI") was founded by Bob Ross, his wife, and his friends Walter and Annette Kowalski "to promote the artist Bob Ross through any and all commercial means and media available." Dkt. 56-1 ¶ 9 (W. Kowalski Decl.). The parties dispute ownership of the Bob Ross intellectual property, including the Bob Ross right of publicity.

         From 1986 to 1992, BRI registered five trademarks of the name and likeness of Bob Ross with Bob Ross's written consent. Dkts. 56-6, 56-7, 56-8, 56-9, & 56-10. During Bob Ross's lifetime, BRI also sold various products featuring Bob Ross's name and likeness with Bob Ross's knowledge and encouragement. Similarly, during Bob Ross's lifetime and with his knowledge and consent, BRI entered into several license agreements granting third parties a license to use Bob Ross's name and likeness. Dkts. 56-11, 56-12, 56-13. The licensing agreements each contained language stating that BRI owned all rights to the products bearing the Bob Ross name, likeness, biographic material, trademark or logo. Id. Defendants have also provided a memo purportedly written by Bob Ross which states that "the greatest asset we [BRI] own is the Bob Ross name and image." Dkt. 56-1 at 10.

         In 1994, BRI drafted an agreement stating that BRI had "sole and exclusive" commercial and derivative rights to the Bob Ross name, image, voice, biographical material, and creative works. Dkt. 54-3. The agreement purported to formalize in writing oral consents from Bob Ross regarding BRI's exclusive rights "governing the use of Bob's name, likeness, image, biographic material, and persona." Id. However, this agreement was never signed, and Bob Ross's son does not think his father would have given BRI "all future use of everything that has to do with [his] name." Dkt. 56-21 at 37.

         On May 12, 1994, Bob Ross created the Bob Ross Trust, Dkt. 54-2, which he amended on May 25, 1995, Dkt. 54-5 ("First Amendment to the Trust"). The First Amendment to the Trust states:

Trustee [Bob Ross] shall assign to Donor's brother, JIMMIE L. COX, ... a fifty-one percent (51%) interest in all rights and interests in intellectual property, and shall assign to Donor's son, ROBERT STEPHEN ROSS, ... a forty-nine percent (49%) interest [in] said rights and interests in intellectual property, to include all rights, title, interests, goodwill, artist's moral rights, resale royalty rights, and renewal rights ... in any and all intellectual property ... including, but not limited to, copyrights and trademarks regarding Donor's name, likeness, voice, and visual, written or otherwise recorded works. Further, such rights hereby conveyed extend to all versions, subsidiary, and derivative embodiments of the rights; and hereby empower the Trustee to act to license ... [and] reclaim ... such works and rights, including the power to defend, rescind or enforce related contracts or other actions by filing suit in law or equity.

Id. at 3-4.

         On the same day he amended the Trust, Bob Ross signed an "Assignment of Rights and Interests in Intellectual Property." Dkt. 54-4. This document granted to Bob Ross, as trustee,

all rights, title, interests, goodwill, artist's moral rights, resale royalty rights, and renewal rights, whether vested, statutory, common law, contingencies, or expectancies in any and all intellectual property ... including, but not limited to, copyrights and trademarks regarding my name, likeness, voice, and visual, written or otherwise recorded works. Further, such rights hereby conveyed extend to all versions, subsidiary, and derivative embodiments of the rights; and hereby empower the Trustee to act to license ... [and] reclaim... such works and rights, including the power to defend, rescind or enforce related contracts or other actions by filing suit in law or equity.

Id. at 2-4. No document was signed to transfer the rights from the trustee to Jimmie Cox and Robert Stephen Ross as required by the First Amendment to the Trust until a nuncpro tune was signed in 2017. See Dkt. 54-6.

         On July 4, 1995, Bob Ross died in Florida and Jimmie Cox became the trustee of the Bob Ross Trust. BRI continued to develop, market, and sell Bob Ross products after Bob Ross's death. Bob Ross's son, one of Plaintiff RSR Art's founders, continued to actively participate in BRI activities promoting Bob Ross even after Bob Ross's death. Dkt. 56 at 17.

         In April 1997, the Trust and Bob Ross's Estate signed a Settlement ...


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