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IP/Entertainment Case Law Updates

Lions Gate Entertainment Inc. v. TD Ameritrade Services Co. Inc.

District court holds Lions Gate's trademark-related claims under Lanham Act and related state law are preempted by Copyright Act in suit over financial services ad campaign that used modified version of famous line "Nobody puts Baby in a corner" from movie "Dirty Dancing."

Lions Gate Entertainment Inc. owns the copyright and trademark rights to the movie “Dirty Dancing.” During the final scene of the movie, Patrick Swayze says to Jennifer Grey, “Nobody puts Baby in a corner.” This is followed by a dance sequence, culminating with Swayze lifting Grey over his head.

TD Ameritrade Services Company and related companies hired defendant Havas Worldwide New York to create a national advertising campaign for TD. The main line of Havas’s ad campaign states “Nobody puts your old 401(k) in a corner,” in some cases juxtaposed with a still or moving image of a man lifting a piggy bank over his head, with the song “I’ve Had the Time of My Life” from the movie scene playing in the ad.

Lions Gate brought suit against TD and Havas, asserting a copyright infringement claim and claims under the Lanham Act and analogous state law for trademark infringement, false association and unfair competition, alleging that defendants’ use of the movie line was likely to cause consumer confusion. Defendants moved to dismiss, arguing that the district court did not have personal jurisdiction over Havas, and that the Copyright Act preempted their federal and state law trademark-related claims.

After holding that it had specific personal jurisdiction over Havas, the district court turned to defendants’ argument that the Copyright Act preempted Lions Gate’s claims under the Lanham Act and related state law. The court concluded that it did, and dismissed all such claims with prejudice.

Applying the Ninth Circuit’s two-part test for copyright preemption, the court held that the state law claims were preempted because (1) copyrighted and copyrightable subject matter is involved in plaintiff’s trademark-related claims and (2) the rights asserted under the trademark-related claims were equivalent to those asserted under the copyright claim. The court applied a similar analysis under Dastar v. Twentieth Century Fox Film Corp. to dismiss the Lanham Act claims. Specifically, the court explained that the trademark-related claims were “based on Defendants essentially copying Plaintiff’s intellectual property and slightly changing the words — creating a derivative work, perhaps — and using the changed sentence in advertising its own products.” The court further explained that “this exact claim and theory can and is made in Plaintiff’s copyright infringement cause of action: that the protected elements of Dirty Dancing, including the line ‘Nobody puts Baby in a corner,’ were publicly used without the authorization of the sole licensor of ‘Dirty Dancing,’ Lions Gate.” Distinguishing other cases in which trademark and copyright claims were allowed to proceed, the court held that Dastar barred the Lanham Act claims in this case because the allegedly infringed line was part of the text, as opposed to the title, of the film.

Finally, the court also dismissed a claim for trademark dilution for failure to state a claim, because defendants had not used the line from the movie as defendants’ own mark or to identify its services.

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