Court Rules Against Lionsgate In TD Ameritrade Suit For Dressing Up Copyright Claim As A Trademark Claim

from the three-IP-monty dept

Last year, we wrote about a lawsuit Lionsgate Studios had initiated against TD Ameritrade over a throwaway line at the end of one of the latter’s advertising spots. That commercial included the line, “Nobody puts your old 401(k) in the corner,” an imperfect parody of a famous line from Dirty Dancing, the rights for which are owned by Lionsgate. The fact that the ad was no longer running at the time of the lawsuit, nor the fact that Lionsgate was in no way involved in the investment business, failed to keep the studio from claiming this was trademark infringement. The studio even went so far as to hilariously claim that consumers would be confused into thinking that TD Ameritrade either had rights to the movie or was in some way affiliated with Lionsgate Studios.

It seems the court wasn’t buying this argument any more than we did, having now ruled against Lionsgate Studios and giving it a little verbal lashing for trying to dress up what looks to be chiefly a copyright infringement claim as a trademark claim.

“The Court cannot see how this is different from a copyright infringement claim, or a claim that Defendants have failed to obtain the permission of the author of the ‘idea, concept or communication embodied in those goods’ … Plaintiff alleges that this would cause consumer confusion as to Lions Gate’s association with the TD Defendants and their services. But 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.”

The reason Lionsgate dressed this up as a trademark issue is that allowed it to assert that TD Ameritrade was falsely associating itself with the movie studio, its property, and/or unfairly competing with it. With the court correctly requiring the studio to assert this as a copyright infringement claim, if it asserts anything at all, the only real tests are whether or not TD Ameritrade’s advertisement appropriated Lionsgate Studios’ work as its own by parodying the line. Which of course means that Fair Use will come into play, as it is certainly an appropriate defense here.

Lionsgate can still pursue TD Ameritrade for allegedly committing copyright infringement, but that’s not without its challenges: The studio will have to show the ad featured substantially similar expression as its movie, and even if the judge buys that TD Ameritrade’s ad is a rip-off of Dirty Dancing, the defendant can argue its commercial is a protected parody as it had fair use to the copyrighted material. Defending against origin claims would have presented a more slippery defense for the brokerage company.

In other words, Lionsgate, in the interest of defending its own intellectual property rights, chose to debase those same rights by asserting them improperly. This is a common theme for the maximalists out there, of course, to see them abuse the rights they claim to value. Still, it’s nice to see a court get this right.

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Companies: lionsgate, td-ameritrade

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