Rogers v. Grimaldi

United States District Court for the Southern District of New York · Property

Propertyright of publicityLanham ActFirst Amendmentartistic expressionmotion picturesartistic speechcommercial speech

Facts

Federico Fellini's film 'Ginger and Fred' is a fictional motion picture about two aging Italian cabaret dancers who had once imitated Fred Astaire and Ginger Rogers and were therefore nicknamed 'Ginger and Fred.' Rogers alleged that the film's title and screenplay misappropriated her public personality, placed her in a false light, and created the false impression that she endorsed or was involved in the film. Fellini stated that he used Astaire and Rogers as cultural symbols of glamorous American cinema and not to portray the real performers. Rogers also produced survey evidence and evidence that MGM had considered promotional ideas aimed at public familiarity with Rogers and Astaire.

Issue

Whether the use of 'Ginger' in the title and screenplay of a fictional motion picture about imitators of Astaire and Rogers is actionable under the Lanham Act, the common-law right of publicity, or false light law, or whether the First Amendment protects that use as artistic expression. More specifically, the court had to decide whether the challenged use was primarily commercial speech or protected artistic speech.

Rule

Motion pictures are protected artistic expression under the First Amendment even when produced and distributed for profit. 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. Likewise, right of publicity and privacy claims do not apply where a public figure's name or identity is used in connection with a protected work of public interest or entertainment rather than as trade or advertising or as a disguised advertisement for a collateral commercial product.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Seattle, director Lena Varga releases a fictional feature film titled "The New Monroe and Dean" about two aging lounge performers whose stage act has long imitated glamorous 1950s movie stars. The posters identify it as "A Lena Varga Film," and nothing in the film states or implies that either celebrity estate participated in the production.

If one estate sues under § 43(a) of the Lanham Act claiming the title falsely suggests endorsement, which result is most consistent with the governing rule?

Explanation. Motion pictures are protected artistic expression even when distributed for profit. Under the majority opinion, before expression through film may be curtailed by the Lanham Act, the plaintiff bears a heavy burden of showing the challenged speech was intended primarily to serve a commercial function. Here, the title refers to the characters’ imitation act and the film is presented as a fictional artistic work, so the claim fails absent proof that the use was primarily commercial or deceptive. (Derived from Rogers v. Grimaldi (n.d.).)