Nostalgia is a big seller these days. Hollywood continues to produce remakes (and remakes of remakes), politicians lament the better days of yesterday, and companies capitalize on feelings of nostalgia in order to make money. It’s not new, but it does seem to be more popular than ever. TD Ameritrade jumped on the Nostalgia Express last year with a commercial that was a nod to all of the fans of the film Dirty Dancing. The commercial used the tagline “Nobody puts your old 401k in a corner,” which is play on the Patrick Swayze’s memorable line “Nobody puts baby in a corner.” Clearly nothing says “dependable financial advice” better than Patrick Swayze in a leather jacket.
The commercial also recreates the final dance scene between the two main characters, where Jennifer Grey jumps into Patrick Swayze’s arms and he lifts her up above his head. Except in this case, it is a piggy bank (the commercial in its entirety is available here, while Patrick Swayze’s “baby in a corner” line can be viewed here).
Perhaps the goal was to incite consumers to share the ads on social media. And maybe that occurred. However the commercial also incited Lions Gate Entertainment (the owner of rights to the Dirty Dancing film) to file a lawsuit claiming copyright infringement, common law trademark infringement, and other unfair competition claims.
TD Ameritrade filed a Motion to Dismiss the claims. Last week, a California U.S. District Court dismissed the trademark claims, but denied the motion with respect to the copyright claims. Beyond a pleasant feeling of nostalgia, the court’s decision also provides two important lessons regarding trademark and copyright law (a copy of the order is available here).
First, trademark law does not protect any word or image that a person or company creates or uses. Trademark law protects words, images, or other indicators of source that have been used in commerce to identify and distinguish the goods or services of one party from another. A line from a movie does not identify or distinguish the source of the move no more than a guitar riff from a song identifies or distinguishes the source of a song. The court noted that it was unclear from the complaint how “the alleged mark NOBODY PUTS BABY IN A CORNER has been or is intended to be used.”
Instead, trademark rights are established when a trademark is used on a product in a way that associates the mark with the product. The size, font, and location of the wording all play a role. In the context of a movie, the Paramount Pictures logo at the beginning would be a use in commerce. But a line used in the movie, regardless of how memorable it may be, is not a trademark use merely because that dialogue was written, performed, and recorded as part of the movie.
Second, the court’s decision highlighted the necessity for parties to analyze each intellectual property claim distinct and separate. The court reasoned that Lions Gate’s complaint “bleeds together its copyright, trademark, and unfair competition claims — and the facts that support each cause of action — making it challenging for the Court, much less Defendants, to determine the allegedly separate theories underlying the different rights.” As you might expect, it’s not a good sign when a court is unable to discern the legal theory for your lawsuit.
The court determined that Lions Gate was actually asserting claims of copyright infringement. Lions Gate complaint identified the infringing activity as (1) use of a modified version of the “Nobody puts baby in a corner” line; (2) the re-creation of the “dance lift” scene; and (3) use of the tagline “Because retirement should be the time of your life,” – a reference to the a reference to the song (I’ve had) the Time of My life song, which was used prominently in Dirty Dancing. The court considered these claims to amount to either unauthorized reproduction or creation of an unauthorized derivative works. These facts might support a claim of copyright infringement, but they do not support a trademark claim which requires confusion or mistake as to the source of the goods. Where a party asserts copyright infringement claim under the guise of a trademark claim, copyright law preempts the trademark claim under the Supreme Court’s decision in Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003).
Stay tuned for the court’s decision on the copyright claims as the case moves forward. And who knows, maybe the Ninth Circuit will provide us with another remake for Lions Gate’s trademark claims.