Entertainment company Lionsgate took umbrage to online broker TD Ameritrade’s use of the tagline “Nobody puts your old 401(k) in the corner” in a recent commercial. Alleging the commercial borrowed from a similar and famous line from “Dirty Dancing,” Lionsgate subsequently filed copyright and trademark infringement claims against the company, but a federal court recently put a stop to that claim, finding that any trademark infringement claim is preempted by copyright law. In its complaint, Lionsgate noted that it had common law trademark rights to the phrase “nobody puts baby in a corner” and that it had a formal trademark application pending. And it argued that TD Ameritrade’s advertisement might make viewers think that Lionsgate had licensed the line for the ad campaign’s use.

However, the court cited Dastar Corp. v. Twentieth Century Fox Film Corp., which draws a distinction between trademark claims that involve a “producer of the tangible goods that are offered for sale” and copyright claims that involve “the author of any idea, concept, or communication embodied in those goods.” It said only the latter type of claim is present in this case.

The court continued:

“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.”

One reason Lionsgate might have lodged both trademark and copyright infringement claims is that the fair use defense is not available in the same, more expansive form available against trademark infringement claims. Thus, TD Ameritrade may now argue that the ad’s tagline was a protected parody of the movie’s line as a defense against all of Lionsgate’s claims.

For more information on this topic, please visit our Copyright Protection service page, which is part of our Software & Copyrights practice.

Klemchuk LLP is an Intellectual Property (IP), Technology, Internet, and Business law firm located in Dallas, TX. The firm offers comprehensive legal services including litigation and enforcement of all forms of IP as well as registration and licensing of patents, trademarks, trade dress, and copyrights. The firm also provides a wide range of technology, internet, e-commerce, and business services including business planning, formation, and financing, mergers and acquisitions, business litigation, data privacy, and domain name dispute resolution. Additional information about the trademark law firm and its trademark attorneys may be found at www.klemchuk.com.

Klemchuk LLP hosts Culture Counts, a blog devoted to the discussion of law firm culture and corporate core values with frequent topics about positive work environment, conscious capitalism, entrepreneurial management, positive workplace culture, workplace productivity, and corporate core values.