Hustler v. Falwell.pdf - Mark Roesler

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and attorneys' fees on appeal is DENIED. PAGE 24 5TH CASE of Level 1 printed in FULL format. GINGER ROGERS, Plaintiff, v. ALBERTO GRIMALDI and MGM/UA ENTERTAINMENT CO., Defendants; GINGER ROGERS, Plaintiff, v. PEA PRODUZIONI EUROPEE ASSOCIATE, S.R.L., Defendant Nos. 86 Civ. 1851 (RWS), 86 Civ. 7481 (RWS) UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK 695 F. Supp. 112; 1988 U.S. Dist. LEXIS 8694; 8 U.S.P.Q.2D (BNA) 1562; 15 Media L. Rep. 2097 COUNSEL: [**1] August 5, 1988, Decided August 8, 1988, Filed BOWER & GARDNER, ESQS., By: BARRY G. SARETSKY, ESQ., ALAN G. KATZ, ESQ. Of Counsel, New York, New York, Attorneys for Plaintiff. PRYOR, CASHMAN, SHERMAN & FLYNN, ESQS., By: STEPHEN F. HUFF, ESQ., TOM J. FERBER, ESQ., CHARLES B. McKENNA, ESQ., Of Counsel, New York, New York, Attorneys for Defendants. JUDGES: Robert W. Sweet, United States District Judge. OPINIONBY: SWEET OPINION: [*113] OPINION ROBERT W. SWEET, UNITED STATES DISTRICT JUDGE Defendants Alberto Grimaldi ("Grimaldi"), MGM/UA Entertainment Co. ("MGM") and PEA Produzioni Europee Associate, s.r.l. ("PEA") (collectively, "Defendants") have moved pursuant to Fed.R.Civ.P. 56 for summary judgment dismissing the complaints of plaintiff Ginger Rogers ("Rogers") in their entirety. Upon the findings and conclusions set forth below, the motion is granted. What must be determined here is the boundary between commercial and artistic speech and the extent of the protection given under the First Amendment to the expression of an idea in a commercial film "Federico Fellini's 'Ginger and Fred'" (the "Film"), as opposed to the protection of a famous actress' name,
Ginger Rogers, under the Lanham Act and the common law. The conflict is direct and significant and was presented with skill and strength by able advocates. In this contest artistic expression [**2] has prevailed, indeed, at least in part as a consequence of the symbolic fame of Ginger Rogers. Facts Ginger Rogers is well-known, a celebrity who enjoys a world-wide reputation. She has been performing in one entertainment medium or another for over 50 years, most prominently in motion pictures, having played major roles in some 73 films over a 35 year period and having won an Academy Award for her PAGE 25 695 F. Supp. 112, *113; 1988 U.S. Dist. LEXIS 8694, **2; 8 U.S.P.Q.2D (BNA) 1562; 15 Media L. Rep. 2097 performance of the title role in "Kitty Foyle" in 1940. Rogers' greatest impact as far as this fact-finder is concerned, however, is attributable to the ten musical films in which she co-starred with Fred Astaire. These films, beginning with "Flying Down to Rio" in 1933 and concluding with "The Barkleys of Broadway" in 1949, established Fred Astaire and Ginger Rogers as the icons of elegant ballroom dancing during Hollywood's Golden Age. This famous pair became so well known that the term "Fred and Ginger" has come to be a metaphorical symbol for fine ballroom dancers and is frequently used in the press as a shorthand term for elegant dancers and dancing. n1 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 The following are excerpts from some of the newspaper and magazine articles submitted by Defendants in which dancers are referred to as "Fred and Ginger" and dance numbers as "Fred and Ginger" routines: (a) "Sashaying into Ballroom Dancing," by Dorothy MacKinnon. The Washington Post, August 27, 1982. Reference: "For the real aficionados, dancing becomes a way of life. Washington's serious Freds and Gingers do most of their dancing at the social dances held by area studios." (b) "Music and Dance Star in Film Maker's Short," by Jennifer Dunning. The New York Times, August 30, 1983. Reference: ". . . the film's dance styles range from disco and 1920's jazz to a final 'Fred and Ginger' filmed on the esplanade . . ." (c) "And Now For The Samurai Flamenco, By A Japanese Isadora," by Barbara Rowes. People, June 14, 1982. Reference: "She began working with Miguel in 1967, and they became the Fred and Ginger of flamenco." (d) "Foxtrotting Without Fear," by Faye Rice. Fortune, March 17, 1986.
Page 1 and 2: 1ST CASE of Level 1 printed in FULL
Page 3 and 4: WHITE, J., filed an opinion concurr
Page 5 and 6: caused emotional distress that was
Page 7 and 8: motivated by hatred or ill-will his
Page 9 and 10: lawfully punish an individual for t
Page 11 and 12: is a vocal advocate for the prohibi
Page 13 and 14: Wyoming to the Central District of
Page 15 and 16: Finally, we note that New York has
Page 17 and 18: PAGE 16 867 F.2d 1188, *1195; 1989
Page 19 and 20: We also find fault with the second
Page 21 and 22: action for invasion of privacy. Oth
Page 23 and 24: they are not obscene. Cf Falwell, 1
Page 25: PAGE 23 867 F.2d 1188, *1200; 1989
Page 29 and 30: . . . Fellini's film is an act of h
Page 31 and 32: non-moving party, summary judgment
Page 33 and 34: cf. Dallas Cowboys Cheerleaders, In
Page 35 and 36: The use of the associations with th
Page 37 and 38: 68 (quoting Central Hudson Gas & El
Page 39 and 40: with a matter of public interest, b
Page 41 and 42: as such, have enjoyed certain const
Page 43 and 44: plaintiff's claim because Zacchini'
Page 45 and 46: efusal to amend, the complaint was
Page 47 and 48: allegations therein, this court may
Page 49 and 50: 386-389, 89 S.Ct. 1794]; Weaver v.
Page 51 and 52: 25 Cal. 3d 860, *867; 603 P.2d 454,
Page 53 and 54: N.Y.S.2d 218, 374 N.E.2d 129] (fict
Page 55 and 56: to "the facts." There is no pretens
Page 57 and 58: film was factual or fictional, no a
Page 59 and 60: 160 Cal. Rptr. 352, ***362; 5 Media
Page 61 and 62: JUDGES: Before POWELL, Associate Ju
Page 63 and 64: this determination, the judge is no
Page 65 and 66: F.2d 1005, 1007 (C.C.P.A. 1981). Th
Page 67 and 68: [**16] The district court unfortuna
Page 69 and 70: - - - - - - - - - - - - - - - - - -
Page 71 and 72: other factors support Anheuser-Busc
Page 73 and 74: The court begins its "different wor
Page 75 and 76: I respectfully dissent. PAGE 69 2ND
Page 77 and 78:
The T-shirt portrays the three admi
Page 79 and 80:
violated section 43(a) of the Lanha
Page 81 and 82:
plaintiffs' favor. See Dallas Cowbo
Page 83 and 84:
in this action that they have a val
Page 85 and 86:
television series." Plaintiff's Mem
Page 87 and 88:
concludes that the conceptual [*147
Page 89 and 90:
The Court also notes that at the he
Page 91 and 92:
since an injunction will prevent de
Page 93 and 94:
success, portraying Superman in sev
Page 95 and 96:
LEXSEE 222 U.S.P.Q. (BNA) 101 which
Page 97 and 98:
During this "promo" the viewer sees
Page 99 and 100:
The basic issues concerning the cop
Page 101 and 102:
similarities and differences in the
Page 103 and 104:
promote creativity, but it places a
Page 105 and 106:
from the Superman saga or incorpora
Page 107 and 108:
motion is renewed, a trial court ha
Page 109 and 110:
source or sponsorship has been impl
Page 111 and 112:
PRIOR HISTORY: [**1] April 5, 1991,
Page 113 and 114:
significant respects, each Coach ba
Page 115 and 116:
expediting litigation. See Celotex
Page 117 and 118:
1217, 1221 (2d Cir. 1987). The plai
Page 119 and 120:
infringement of its registered hang
Page 121 and 122:
produce the handbag styles at issue
Page 123 and 124:
(1986). [**29] It most assuredly do
Page 125 and 126:
PAGE 116 7TH CASE of Level 1 printe
Page 127 and 128:
- - - - - - - - - - - - - - - - - -
Page 129 and 130:
Cir. 1980). Nevertheless, registrat
Page 131 and 132:
. . . . shall be liable in a civil
Page 133 and 134:
and appearance, differing only by o
Page 135 and 136:
order a Dead Dog T-shirt. n11 The s
Page 137 and 138:
America, Inc., 971 F.2d 1395, 1401
Page 139 and 140:
Mass. Gen. L. ch. 110B, @ 12. To pr
Page 141 and 142:
N.E.2d 149, 153 (1979) (To be actio
Page 143 and 144:
Plaintiffs Girl Scouts of the Unite
Page 145 and 146:
The purposes of the corporation sha
Page 147 and 148:
Scouts' mark for Pee Wee Harris now
Page 149 and 150:
and, third, the parties dispute whe
Page 151 and 152:
to consider the eight factors artic
Page 153 and 154:
definition, parody requires resembl
Page 155 and 156:
& Elec. v. Public Serv. Comm'n, 447
Page 157 and 158:
- - - - - - - - - - - - - - - - -En
Page 159 and 160:
that there is little similarity bet
Page 161 and 162:
n22 Plaintiffs and Defendants have
Page 163 and 164:
Because First Amendment considerati
Page 165 and 166:
they made a "general mention of sco
Page 167 and 168:
certainly does not contribute to ov
Page 169 and 170:
* * * For the foregoing reasons, De
Page 171 and 172:
Convenience Coop. Co., 922 F.2d 429
Page 173 and 174:
the other six factors tilts towards
Page 175 and 176:
In actions for trademark infringeme
Page 177 and 178:
UNITED STATES DISTRICT COURT FOR TH
Page 179 and 180:
HARD ROCK CAFE and Design shirts, j
Page 181 and 182:
image on the garment. Pacific Graph
Page 183 and 184:
Stipulated Facts, para. 28. Transfe
Page 185 and 186:
para. 38. 39. Ms. Hurd admitted tha
Page 187 and 188:
T-shirts. As to marketing channels,
Page 189 and 190:
mere humorous caricature of plainti
Page 191 and 192:
deliberately plagiarized make-up do
Page 193 and 194:
1989 U.S. Dist. LEXIS 11678, *2; 11
Page 195 and 196:
nonadvertising purposes, 30 A.L.R.3
Page 197 and 198:
Modern status of Federal Civil Proc
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