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May 11, 2017

MGM Argues: Guess What? Trademarked Products Show Up In Everyday Life

BOWLING GREEN, Ky.—For nearly half a century, producers of adult features have been extremely (one might say pathologically) careful not to show any brand names in their productions, even if the named product is only on-screen for seconds or a fraction thereof. It's led to directors putting opaque tape over Kentucky Fried Chicken tubs, Coca-Cola cans, Taco Bell and El Pollo Loco logos, etc., etc. But thanks to a recent court filing by MGM Studios in a trademark lawsuit, all that may soon be a concern of the past. Earlier this year, The Sporting Times, a sports magazine distributed in several states and looking to go national, filed a federal lawsuit against Orion Pictures, MGM, and four other defendants over the fact that in the film Spaceman, a biopic about the major league baseball pitcher Bill "Spaceman" Lee—a guy who, according to Law360 reporter Bill Donahue, was known for "a bizarre pitching style and an even stranger off-the-field persona"—there was a fleeting glimpse of a Sporting Times front cover that bore Lee's image with the header, "Boston's Bill 'Spaceman' Lee in an orbit all his own." The same image also showed up in trailers for Spaceman that were aired in June and July of 2016. It's unclear from the suit papers whether the magazine cover is from an actual Sporting Times issue or a mock-up created by the filmmakers using the Sporting Times logo, but in any case, Sporting Times' owners aren't too happy about it because, according to the lawsuit, "The Sporting Times® is a registered trademarked publication that is dedicated to youth sports and, in particular, the role that sports play in strengthening our children, families, and communities. Needless to say, it enjoys a reputation as a squeaky-clean, moral, and principled publication and promotes this specific image to potential franchisees and readers." Hence, they weren't too happy being associated with the "bizarre," "strange" Lee—or as the lawsuit puts it, "Each time either the offending trailer or movie is watched, The Sporting Times, LLC is injured both because: (1) its trademark has been infringed; and 2) The Sporting Times is negatively portrayed as a publication that venerates and promotes over-the-hill athletes with serious addiction problems—the sort of sensationalist story that it would by all means avoid as it is the antithesis of the clean cut girl or boy next door image it actively promotes." So The Sporting Times is claiming that by putting the magazine cover on screen, the defendants violated its trademark under the Lanham Act, the section of federal law which prohibits a number of activities, including trademark infringement, trademark dilution, and false advertising, as well as "commercial disparagement" of its brand—all for apparently using an image that the magazine itself created! MGM wasn't about to take the lawsuit lying down, and earlier this month, it filed a Motion to Dismiss Sporting Times' lawsuit "for failure to state a claim." "At bottom, Plaintiffs’ lawsuit is based on the false premise that the Lanham Act and analogous state consumer-protection statutes prohibit the use of their mark in the film without their authorization," MGM's attorneys argue in their opening summation. "But this theory defies overwhelming precedent and common sense. If Plaintiffs were correct, then a character in a film or other expressive work could not say 'waiter, may I please have a Coke?', exclaim that she was 'going to Disneyland,' or ask a friend to 'watch the Kentucky Derby,' unless the producer first obtained consent from trademark owners at The Coca-Cola Company, The Walt Disney Company, or Churchill Downs. Nor could a filmmaker show an Apple logo on an iPhone, a Chevrolet nameplate on a car, or the McDonald’s arches on a food wrapper without first obtaining those companies’ approval. Happily for filmmakers and their audiences (and for the creators of other expressive works), the Lanham Act does not grant trademark owners such veto power over the content of expressive works." It remains to be seen which view of Sporting Times' trademark holds sway—no trial date has yet been set in the case—but assuming MGM prevails, shooting adult movies is going to be a lot easier from a legal standpoint—as long as no one makes the claim, for instance, that Kentucky Fried Chicken is an aphrodisiac. Photo of Bill 'Spaceman' Lee from Wikimedia Commons, used with permission.

 
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