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TD Ameritrade, the brokerage firm that is fending off Lionsgate over a Dirty Dancing spoof advertisement with the tagline, “Nobody puts your old 401(k) in the corner,” is asking a judge to dismiss the studio’s lawsuit.
Besides jurisdictional objections, TD Ameritrade argues in a motion to dismiss filed in California federal court on Tuesday that Lionsgate’s complaint asserting false association, unfair competition, trademark infringement and dilution is preempted by federal copyright law.
The argument is heavily informed by the Supreme Court’s 2003 opinion in Dastar, which dealt with a 1949 television series about World War II and became shorthand for the proposition that trademarks can’t be used as perpetual swords to counter copyrighted work falling into the public domain.
Here, TD Ameritrade wants to pretty much extend the barring of all trademark claims when they are “inadequate copyright claims in disguise.” The defendant is arguing that Lionstage is attempting “to piggyback its non-existent trademark claims on the alleged fame of Dirty Dancing. This is a clear end-around Dastar that presents precisely the type of ‘species of mutant copyright law’ claim that the Supreme Court warned would result…”
In other entertainment law news:
-Just a week after ProPublica issued a report how Vizio Smart TVs were watching its watchers in the default setting, sharing viewing habits with advertisers, Vizio has been hit with a proposed class action lawsuit alleging violation of the Video Privacy Protection Act, the federal law enacted in the 1980s after The Washington Post published a list of videos rented by then-Supreme Court nominee Robert Bork. VPPA lawsuits haven’t had a good track record of late, but this seems to be the first case over spying Smart TVs. Vizio has already stated that it believes the VPPA doesn’t apply to its product.
-AMC and Regal have been targeted yet again in a lawsuit over so-called “clearance pacts” with Hollywood studios, the kind that gives the movie exhibition giants exclusivity on first-run blockbusters in a particular geographical region. The latest lawsuit comes in Texas state court from iPic. Here’s the press release, which also links to a copy of the complaint. AMC is also facing another antitrust lawsuit in Texas, which as we detailed on Monday, has gotten into the issue of Hispanics speaking English.
-Last week, we reported the incredible-if-true saga of Brett Daniels, a magician who says his partners stranded him in Venezuela on the verge of a TV deal. On Monday, the producers of The Illusionists turned around and sued Daniels in California federal court, seeking to enforce an arbitration agreement. Or maybe better put, make his lawsuit in open court disappear.
-It’s Dancing with the Stars vs. Ballroom With a Twist. BBC alleges a “copy-cat dance performance show” that allegedly apes its advertising and lures its dancers into breaching contracts. Scott Stander & Associates responds that BBC failed at its own attempt at a live dancing tour and really just wants to “crush the competition.” We first reported the lawsuit here. On Monday, both sides delivered a joint brief in advance of a summary judgment ruling that gets into issues such as likelihood of confusion and the nuances of those dancer contracts. See the full court filing here.
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