Jerry Garcia's heirs sue over burrito chain's use of his image
(Court TV) -- Cherry Garcia it ain't.
The heirs of rock legend Jerry Garcia are suing a burrito franchise based in Atlanta for improper use of the singer's image in its restaurants and advertising.
Not only does Moe's Southwest Grill offer the "Alfredo Garcia" fajita (choice of grilled chicken, steak or tofu with lettuce, salsa, and shredded cheese), but nearly all 130 restaurants prominently display a portrait of the renowned singer, the suit filed by Jerry Garcia Estate LLC claims.
Although the estate administers licensing for several products bearing Garcia's likeness, such as the Ben & Jerry's ice cream flavor "Cherry Garcia," the singer's heirs claim Moe's never sought licensing for the portraits, ads, fliers or commercials graced with Garcia's mug.
The suit also condemns the use of an altered lyric from Grateful Dead song, "Casey Jones," that appears beneath portraits of Garcia.
The plaintiff claims the altered lyric "Trouble ahead, trouble behind, just have my taco ready in time," was misappropriated.
"Just in case a consumer is not certain that the likeness in the portrait is Mr. Garcia, Moe's clinched the identification by using famous song lyrics readily associated with Mr. Garcia," the suit complains.
Founded in 2001 by Garcia's widow, children and brother to protect and promote Garcia's legacy, and managed by music lawyer Christopher Sabec, the estate claims the franchise violated federal trademark and copyright laws by using Garcia's image to reap "ill-gotten benefits."
Even so, Brooke Oliver, intellectual property counsel for the Estate, says licensing would not have necessarily been granted in this instance.
"It's not the sort of product the heirs are interested in associating Jerry Garcia's likeness with," Oliver said, adding that the sort of licensing Moe's might have sought would have cost at least $75,000 per store for a short-term agreement.
Moreover, the estate claims Moe's use of Garcia's image creates "confusion among consumers" by wrongly suggesting "sponsorship or an implied endorsement of Moe's restaurants" by Garcia.
"Defendant's widespread misappropriation of Mr. Garcia's likeness, song lyrics and name have turned the internationally famous musician, artist and founder of the 'Grateful Dead' into little more than a taco huckster," the suit, filed in U.S. District Court in Atlanta, claims.
Moe's Southwestern Grill LLC, along with its parent company, Raving Brands, are named in the suit, which seeks unspecified damages, along with injunctive relief and restitution.
Martin Sprock, the franchise's founder and CEO and his wife, Leann, are also named in the suit.
The couple started the Atlanta-based franchise in 2000. Its name is an acronym for musicians, outlaws and entertainers, and the chain uses the images and music of entertainers such as Jim Morrison, Bob Marley, Janis Joplin and Elvis in all of its establishments.
Moe's Southwestern Grill spokesperson Heather Graham declined to comment on the case.
But the company's vice president, Matt Andrew, released a statement claiming the restaurants have already taken down all portraits of Garcia. He also refuted allegations that Moe's used Garcia's image to promote sales.
"We recognize that the First Amendment protects an artist's ability to create artwork and anyone's right to display that artwork if in lawful possession of it, even if it bears similarity to a public figure," Andrew said. "We doubt seriously anyone would need to remind Mr. Garcia of the First Amendment were he alive."
Michael Crain, co-counsel for the estate, found those statements questionable.
"We're not going after the artist that painted the picture. We're going after the big corporation that used it to capitalize on his image," Crain said.