Rhodes

MEMORANDUM **

Joseph Brandstetter, Rhodes Music Corporation and Piano & Music Mart Retail Corporation appeal the grant of summary judgment in favor of Margit Mohr Rhodes. Because we conclude that there is a triable issue of fact whether and to what extent Harold Rhodes consented to the appellants’ use of his name, likeness and trademarks, we vacate the summary judgment and remand for trial.

Because all parties are familiar with the facts, we refer to them only very briefly here. Over the course of the 1990s, Harold Rhodes entered into several agreements with Brandstetter, allowing Brandstetter to use Rhodes’ name and likeness in certain limited ways. Two of these agreements envisioned the use of Rhodes’ name and likeness through one of Brandstetter’s corporations, E-Z Way Productions, Inc. One agreement was between Brandstetter personally, Rhodes, Rhodes’ wife, and Rhodes’ son.

At summary judgment the district court found that there had been other, unauthorized uses of Rhodes’ name, marks and likeness by Brandstetter and the defendant corporations, and the court awarded damages.

We review de novo a grant of summary judgment. Chevron U.S.A. Inc. v. El-Khoury, 285 F.3d 1159,…