Hustler v. Falwell.pdf - Mark Roesler

More documents

Recommendations

Info

the Second Circuit's opinion is consistent with Supreme Court [**20] decisions holding that the "Constitution . . . accords a lesser protection to commercial speech than to other constitutionally guaranteed expression." Central Hudson Gas & Elec. Corp. v. Public Service Comm'n of New York, 447 U.S. 557, 563, 65 L. Ed. 2d 341, 100 S. Ct. 2343 (1980) (citing Ohralik v. Ohio State Bar Ass'n, 436 U.S. at 456, 457). Among the reasons why 'commercial speech receives limited First Amendment protection is 'the legitimate public interest in suppressing "commercial messages that do not accurately inform the public about lawful activity." Id. n4 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n4 In Central Hudson Gas & Elec. Corp., the Supreme Court also suggested that a restriction on non-misleading commercial speech may be justified if the government's interest in the restriction is substantial and if the restriction directly advances the government's asserted interest and is no more extensive than necessary to serve the interest. Central Hudson Gas & Elec., 447 U.S. at 566. In San Francisco Arts & Athletics, Inc. [SFAA] v. United States Olympic Committee [USOC], 483 U.S. 522, 107 S. Ct. 2971, 97 L. Ed. 2d 427 (1987), the Court recently relied on the government's assertion of a strong interest in promoting, through the USOC's activities, the participation of amateur athletes from the United States in the Olympic Games to uphold against a First Amendment challenge a statute that granted the USOC the exclusive use of the word "Olympic." There, the Court found that the USOC's use of trademark remedies to prohibit the SFAA's use of the word to promote the "Gay Olympic Games" was not barred by the First Amendment even though the SFAA claimed to have used the word for both commercial and political purposes. SFAA v. USOC, 107 S. Ct. at 2983. The Court based its holding, in part, on a finding that the SFAA's use of the word could not be divorced from the commercial value the USOC's efforts had given to it and was "a clear attempt to exploit the imagery and goodwill created by the USOC." Id. & n.19. PAGE 33 695 F. Supp. 112, *119; 1988 U.S. Dist. LEXIS 8694, **20; 8 U.S.P.Q.2D (BNA) 1562; 15 Media L. Rep. 2097 - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**21] In addition, the Supreme Court has held that where a company "enjoy[s] the full panoply of First Amendment protect ions for [its] direct comments on public issues, [t]here is no reason for providing similar constitutional protection when such statements are made only in the context of commercial transactions." Id. 447 U.S. at 563 n.5. Therefore, "advertising which 'links a product to a current public debate' is not thereby entitled to the constitutional protection afforded noncommercial speech." Bolger v. Youngs Drug Prod., 463 U.S. [60] at
68 (quoting Central Hudson Gas & Elec., 447 U.S. 557, 563 n.5, 65 L. Ed. 2d 341, 100 S. Ct. 2343 (1980)). Although the language of the opinions of both the district court and the Court of Appeals in Dallas Cowboys do not contain any express limitation of the Lanham Act's override of the First Amendment to cases involving speech that is primarily commercial, such a narrowing is implicit in subsequent decisions of the Second Circuit in which the Court has held that "[m]isleading commercial speech" regulated by the Lanham Act "is beyond the protective reach of the First Amendment." Vidal Sassoon, Inc. v. Bristol-Myers Co., [*120] 661 F.2d 272, 276 n.8 (2d Cir. 1981); see also Consumers [**22] Union of United States, Inc. v. General Signal Corp., 724 F.2d 1044, 1052 (2d Cir. 1983). How to identify the line between commercial and artistic speech, however, constitutes the difficulty presented in the instant case. In an era where artistic expression is often intertwined with the use of well-known symbols, which because of their familiarity may have commercial value, to real Dallas Cowboys as Rogers suggests to require courts to decide whether an artistic message could have been conveyed in some other manner would have a chilling effect on the free expression of creative ideas. As the late Andy Warhol is reported to have stated, "Being good in business is the most fascinating kind of art." With annual sales in the international auction market exceeding one billion dollars, see Kernan, "The Great Debate Over Artists' Rights," The Washington Post, May 22, 1988, at F1, it is hardly surprising that for some artists, like Warhol, the distinction between art and commerce has blurred beyond recognition. The staggering box office receipts of smash hit movies and the burgeoning video rental market may have a similar effect on the hearts and minds of those in the film industry. [**23] More than three decades ago, however, the Supreme Court rejected the contention that simply because the "production, distribution, and exhibition [of motion pictures] is a large-scale business conducted for private profit," expression by means of films should not be protected by the First Amendment. Joseph Burstyn, Inc. v. Wilson, 343 U.S. at 501-02. Therefore, before expression through film can be curtailed by the Lanham Act, the party seeking relief bears the heavy burden of establishing that the challenged speech is intended primarily to serve a commercial function. In the instant case, Defendants contend that the use of Rogers' first name in the title and screenplay of the Film constitutes an exercise of artistic expression rather than commercial speech. On the basis of viewing the Film and the undisputed facts in the record, it is so found. PAGE 34 695 F. Supp. 112, *120; 1988 U.S. Dist. LEXIS 8694, **23; 8 U.S.P.Q.2D (BNA) 1562; 15 Media L. Rep. 2097 In the commercial speech cases discussed above, the defendants' use of the plaintiffs' celebrated image or symbol was intended primarily to persuade the public to consume something that either had no connection to the plaintiff, Allen, or to convey the false impression that plaintiff was somehow involved with or had endorsed the product, [**24] Dallas Cowboys. Here, by contrast, the relevance of "Ginger" in both the Film's title and screenplay is apparent at two levels. First, the title accurately refers to the fictionalized nicknames of
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 and 26: PAGE 23 867 F.2d 1188, *1200; 1989
Page 27 and 28: Ginger Rogers, under the Lanham Act
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: The use of the associations with th
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
show all

Hustler v. Falwell.pdf - Mark Roesler

Create successful ePaper yourself

Delete template?

Save as template?