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Janice Dickinson may be unhappy with how she unwittingly became the point of controversy during an episode of Shahs of Sunset, the Bravo reality television show from Ryan Seacrest Productions about six Iranian-American socialites in Los Angeles, but a federal judge rules that the show’s exploitation of the supermodel doesn’t violate the Lanham Act.
Every year, Dickinson appears as a runway model pro bono during Los Angeles Fashion Week. She does this based on her friendship with the fashion designer who organizes the event. Dickinson says she wouldn’t appear if her “celebrity” was exploited.
But in 2016, when she showed up, Shahs of Sunset was filming an episode for its sixth season. Viewers see Dickinson backstage wearing a silver romper as castmember Golnesa “GG” Gharachedaghi exclaims: Dickinson “stole the outfit I’m supposed to be wearing? Oh, hell no!”
In the lawsuit that follows, Dickinson alleged that agents for Seacrest Productions and others conspired to script this false controversy. Worse, when Dickinson learned of her appearance in the show and confronted producers about what happened, they allegedly came forward with a release with her forged signature. She brought a complaint in California federal court against multiple defendants — including NBCUniversal — and claimed false endorsement, false advertising, trademark dilution and unfair competition.
On Wednesday, U.S. District Court Judge George H. Wu adopts a tentative order dismissing the claims that had been circulated to the parties during an oral hearing earlier in the week.
Dickinson had argued that the First Amendment doesn’t protect knowingly false speech and that some of the defendants’ speech — specifically, advertisements promoting the Shahs of Sunset episode in question — amounted to commercial speech.
Nevertheless, Wu sticks to the test established in Rogers v. Grimaldi, 1989 decision by the 2nd Circuit that resulted from a lawsuit brought by the actress Ginger Rogers over the Fellini film Ginger and Fred. The test directs judges to examine whether use of a trademark has artistic relevance, and if so, whether the work is explicitly misleading. Here, the “mark” is really Dickinson’s name, image and likeness.
The judge finds that Dickinson’s inclusion in the episode, even without consent and even if the narrative of a stolen romper was false, “bore artistic relevance above zero.”
“From the Court’s review of the Episode, part of the Episode focused on the Los Angeles Fashion Show, and a significant sub-plot of the Episode included the narrative that Plaintiff stole the romper earmarked for Gharachedaghi,” he writes.
The question then turns to whether producers could demonstrate that Shahs of Sunset didn’t explicitly mislead viewers as to Dickinson’s sponsorship. The fact that she was in the program is not enough, says the judge, who concludes that her complaint doesn’t adequately allege viewer confusion.
“Near the beginning of the Episode, the cast members, producers and companies behind the Episode are listed, with Dickinson failing to appear on that list,” writes Wu. “Moreover, there is nothing to suggest that Plaintiff, who is portrayed as the nemesis in one scene of one episode in a reality television show, somehow endorsed or backed the Episode. Though the Episode’s allegedly false narrative portraying Plaintiff as ‘stealing’ the romper may be unethical or violate some other law, that narrative does not sustain the Rogers explicitly misleading prong as to Plaintiff’s Lanham Act claims. Likewise, nothing in the allegedly false statements made outside the Episode satisfy this prong as to the Episode because they do not state that Plaintiff was behind Episode.”
The judge notes that the Rogers test hasn’t been applied to trademark dilution claims, but quotes one 2011 decision: “[A]rtistic trademark uses are protected from trademark dilution liability for similar reasons.”
Finally, Wu doesn’t think the unfair competition claim fits the allegations premised on Dickinson’s forged signature on a release. Here’s the full decision.
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