Bubba the Love Sponge’s legal team has responded to the lawsuit filed by Nick Bollea and Terry McCoy and is calling for the case to be dismissed.
Last week, Bollea and McCoy, acting on behalf of the estate of the late Terry Bollea, filed a suit in the U.S. District Court, Middle District of Florida, alleging copyright and federal trademark infringement and violation of a settlement agreement between Bubba the Love Sponge (Todd Clem) and Hogan regarding an upcoming documentary.
The doc, Video Killed The Radio Star: The Untold Story of the Hulk Hogan Sex Tape Scandal, was screened in Tampa last Friday despite a judge issuing a temporary restraining order (TRO) and causing the producers of the doc to edit eight seconds of the film and assume all liability with the venue.
Clem’s response was filed on Tuesday, calling last week’s TRO “legally and constitutionally unsustainable”. They argue that no estate has been opened or any personal representatives named, and therefore, Nick Bollea and Terry McCoy lack the authority to seek injunctive relief, and therefore, the case should be thrown outright. The defendants cite a lack of records with the Pinellas County, Florida’s Clerk of Court Records regarding an estate or probate matter being opened.
Secondly, Clem argues he is not the producer of the documentary, and it is wholly owned, controlled, produced, and distributed by Woltz Films, which is not listed as a defendant. Clem is only a subject in the doc and made a content license agreement with Woltz Films to promote the documentary.
From the defendants’ response:
By purposefully bypassing Woltz Films, a nonparty to any Settlement Agreement with Bollea, and instead targeting Clem, Plaintiffs secured sweeping early injunctive relief in the TRO against Clem that is now being used as a basis to assert claims to non-parties contrary to well established fair use law and also subjected Clem to senseless litigation. This tactic is improper and further underscores why the TRO must be dissolved.
Clem argues he has no creative control, no ownership interest, no distribution rights, and no exhibition rights for the documentary.
Regarding a 2012 settlement agreement between Clem and Bollea and the potential violation, the defendants responded:
Plaintiffs also accuse Clem of exploiting Bollea’s declining health and eventual death on his radio show. Yet Clem’s statements were truthful and newsworthy.
The documentary is a journalistic and historical work that, in part, comments on and contextualizes a notorious celebrity sex tape scandal. This is a documentary about Clem, not Bollea. Bollea was a party necessary to explain the overall historical narrative of the events, but he is not the subject of the documentary film itself.
The defendants are asking the court to deny the motion for a TRO and dissolve the one in place due to a “lack of standing”.
They also request a dismissal of the complaint by Bollea and McCoy, awarding the defendants reasonable attorney fees and costs incurred to defend, and a request for an expedited hearing before September 12 release if the TRO is not dissolved.
If the TRO is not dissolved, they request it to be altered to allow for the publication and use of the content in the public domain because of fair use law.
