The current brand owner of Winston cigarettes is not backing down on the pursuit of civil and criminal contempt charges against the co-owner of the Winston Cup Museum in Winston Salem, North Carolina even after the facility closed.
The short version of the backstory, explained into greater detail here and here, is that ITG Brands acquired the cigarette manufacturer from RJ Reynolds Tobacco Company in 2015 and began taking legal action against the museum over the past year.
ITG has argued that it owns anything with the Winston branding on it and that includes its interest in the items that were previously inside the museum.
Will Spencer, the co-owner and founder of the museum, successfully argued his rightful ownership of the artifacts and posited that ITG only acquired the cigarette packets. Spencer says ITG never acquired anything from the Winston Sports Marketing subsidiary that closed in 2003 when the NASCAR partnership ended.
Three different lawsuits were filed and two were dismissed before Spencer decided to close the museum and instead focus on paying heritage to the era through an upcoming website and social media experience called the Win Cup Museum.
Nevertheless, ITG is now pursuing criminal contempt charges against Spencer for what it claimed on December 8 is disparaging and damaging remarks about the manufacturer to the media and on social media about why the museum closed.
Spencer, a local businessman in Winston Salem, filed to dismiss those motions. The motion primarily revolves around a 79-minute YouTube video crated by content creator Mitchell Stapleton in which the YouTuber editorialized the events that led up to the closure.
“Maybe you’ve seen the stuff about the lawsuits surrounding (the museum); the questionable at best United States judicial system has allowed a large company to bully this guy into closing his museum.”
That was a major point of contention to ITG who said Spencer was liable for those comments as the video was shared to the Winston Cup Museum Facebook page.
“Mr. Spencer and the museum plainly encouraged and aided the interviewer in his disparagement of ITG, in further violation of the judgment, by participating in and promoting the video, and then celebrating the video on the Winston Cup Museum Facebook page.”
“Throughout the course of this litigation, and especially after ITG filed its motion for preliminary injunction, Will Spencer made multiple false statements to the media to make himself out as the victim and ITG as the bully.”
“More broadly, the narrative that Mr. Spencer is the victim of anything other than his own greed is not true.”
ITG Brands in a motion to hold Will Spencer in contempt
Spencer argued in his motion to dismiss that there was no “willful disobedience of a court order” by himself or his entities.
Spencer argued that he was merely a tour guide, “telling story after story about artifact after artifact,” while Stapleton “wrote it, filmed it, edited it, produced it, inserted the graphics for it and posted it.”
“That linking to Stapleton’s video could somehow constitute a violation of the mediated settlement agreement or order and final judgment never even occurred to Spencer or the Museum LLC.”
Spencer had the video removed from the Facebook page when ITG filed its initial motion.
ITG has argued that it was not enough.
“Considering the egregious nature of the misconduct, even if defendants remove the offending video and publish a retraction, Will Spencer should be held in criminal contempt as punishment for his willful actions.”
Friday’s motion, which can be read in full here, centers around the Winston Cup memorabilia that was displayed and sold at the museum for nearly 20 years. This is in addition to a mobile museum display that was taken to several NASCAR Cup Series events this season.
“Defendant also continued to sell Winston-branded merchandise following the (Nov. 2) mediated agreement, including to children,” ITG said in the most motion.
ITG argued that Spencer and the Winston Cup Museum are covered by the same marketing restrictions to youths that tobacco brands are.
“Although the souvenirs at issue facially contain 2003 copyrights — thus potentially making them ‘historical artifacts’ that the defendants can sell under the mediated agreement — ITG is concerned that these souvenirs may be counterfeit reproductions made after 2003.
“Many of the items (souvenirs), such as the bumper stickers with Winston branding, appear brand new, and not like 20-year-old ‘historical artifacts.”
ITG in Friday’s motion
Spencer denied those allegations.
“We have been selling exact same banners, flags and decals at the museum for over 19 years, all of which were originally produced prior to 2003 when RJR owned the brand,” Spencer told the Winston Salem Journal.
“The original/sealed boxes they have been stored in, as well as the printed materials itself, are dated as such. … Not only would it be cost-prohibitive to produce these materials in mass, but it would have been illegal for us to have such materials printed, and it would have involved third parties to do so.”
It also still pursuing the motion of contempt over the YouTube video.
Defendants knowingly and voluntarily entered into the Mediated Agreement and waived their right to free expression. Est. of Barber, 161 N.C. App. at 664, 589 S.E.2d at 437.
Defendants then knowingly and voluntarily consented to the entry of the Mediated Agreement as a Court order “enforceable pursuant to the Court’s general contempt power” (ECF 40)—thus waiving whatever rights they had under N.C. Gen. Stat. § 5A-11(b) or otherwise to avoid the Court’s contempt power for violation of the Mediated Agreement.
Because Defendants voluntarily waived their defenses against the exercise of the Court’s contempt power, their arguments under N.C. Gen. Stat. § 5A-11(b) are not well taken.
ITG Brands in a motion to hold Will Spencer in contempt
ITG Brands also wants the YouTube video purged and for Spencer to retract its message.
Defendants, unfortunately, chose to continue their false narrative that ITG bullied them into submission—flatly violating ITG’s court ordered right not to be disparaged.
To preserve ITG’s bargained for rights, removal of the posts is not sufficient. The reputational harm that ITG tried to prevent has already been done considering that the video was viewed more than 150,000 times prior to removal. Defendants should be compelled to retract the disparagement to preserve ITG’s court-ordered right against defamation and disparagement before their contempt can be purged.
ITG Brands in a motion to hold Will Spencer in contempt
Spencer says he can’t retract something he did not personally say.
“The comment in question wasn’t something I said,” he told the Journal. “It was a personal opinion made at the beginning of the video by the interviewer. I believe he still has his rights to says whatever he wants.
“The video is about history and cool cars — nothing else.”
The artifacts that were once housed inside the museum will be auctioned off at a MECUM auction in Kissimmee, Florida in January. The full list of items up for sale can be viewed here.
ITG is also adamant that the Spencers could have kept the museum open through a rebranding initiative and could have funded that rebranding by selling just one car at the auction.
Thus, ITG pushes back against the narrative that ITG shut the museum down:
“That is objectively false. Just one of the cars, a Dodge Daytona, is estimated to sell for more than $750,000 at auction. Considering that Defendants could sell one car to pay for all of the rebranding, financial constraints are not the issue. Defendants want to perpetuate public sympathy at the expense of ITG’s bargained for rights under the Mediated Agreement.”
Matt Weaver is a Motorsports Insider for Sportsnaut. Follow him on Twitter.