Lessons From Recent Creative Clashes In Entertainment IP

While not new, these clashes may be intensifying as the edges between reality and entertainment are blurring with greater frequency and ease due to a population with near limitless access to digital entertainment, symbiotic relationships between consumers and content creators, immersive venues, and extended reality technology.

The integration of recognizable images, cityscapes, buildings and brands into entertainment fosters a consumer experience that feels more familiar and more real. The arising legal implications are being evaluated by brand owners and the entertainment industry.

Recent Controversies

To the casual observer, creative decisions such as which car a character drives, what buildings are depicted in a scene, or the brand of clothing worn may seem innocuous, or even flattering to the brands involved. In reality, instances like this can launch legal disputes.

Three recent controversies bring these tensions into focus: Duke University’s objection to its logo appearing in a dramatic scene in a popular television series; Pepperdine University suing for trademark infringement over a fictional basketball team in a television series; and Sphere Entertainment Co. objecting to a depiction of the Sphere venue in concert visuals.

In March, Duke raised a general objection to the use of its trademarks in a White Lotus episode, as well as the context of the use where a character wearing a “DUKE” T-shirt contemplates suicide. Duke said this imagery was “troubling” and “simply goes too far.”

To date, Duke has not initiated legal proceedings over the event, leading some to dissect Duke’s public grievance. An article in the university’s on-campus publication, The Chronicle, questioned whether Duke’s objections caused more harm than good.[1]

In Pepperdine University v. Netflix Inc., a lawsuit filed in February in the US District Court for the Central District of California, Pepperdine sued Netflix and others, alleging that the show “Running Point” misappropriated Pepperdine’s trademark rights by featuring a fictional basketball franchise with different reference points to Pepperdine’s own basketball team.

In the complaint, Pepperdine alleges that these identifiers, including similar names and uniform colors, are so closely associated with its brand that viewers might mistakenly infer affiliation or endorsement of the show. Pepperdine asserts that this is particularly harmful to its Christian mission due to the series’ depiction of sexual content, profanity and alcohol use.

Beyoncé’s clash with Sphere Entertainment is over visuals used in her ongoing “Cowboy Carter Tour.” The tour includes a video featuring a giant-sized Beyoncé walking in different settings. In one segment, she walks through Las Vegas and lifts the venue the Sphere, which resulted in Sphere Entertainment sending a cease-and-desist letter in May.

According to the New York Post, Sphere Entertainment alleged that the venue’s image was used without permission, creating a false impression of a partnership.[2] It was reported that Sphere Entertainment claimed that the depiction misleads fans into believing that Beyoncé would end her tour with a residency at the Sphere.

There has been speculation that the legal friction originated from failed negotiations for Beyoncé to appear at the Sphere. Beyoncé’s response to Sphere Entertainment’s letter was, in part, to edit the video and replace the Sphere with a depiction of Allegiant Stadium, the actual venue for her Las Vegas show.

Legal Frameworks

As the US provides robust protections for creative works under the Constitution, the question that arises in each of the above instances is: When might creative expression cross over into infringing another party’s rights, and how can these potentially conflicting interests be balanced?

The law may shift in favor of the entertainment work versus the intellectual property holder depending on if trademarks or copyrights are at issue.

To evaluate the First Amendment rights in creative works versus trademark rights, courts look to the 1989 case Rogers v. Grimaldi, in the US Court of Appeals for the Second Circuit, which focused on two main questions — (1) is the use of the trademark in the work artistically relevant, and (2) does the use explicitly mislead consumers about the source or sponsorship of the work?[3]

This Rogers test leans heavily in favor of free expression, and the threshold for artistic expression is low. Unless a trademark owner shows a risk of clear confusion, the First Amendment typically reigns.

A useful example of balancing architectural IP interests with creative expression can be seen in the 2008 case of E.S.S. Entertainment 2000 Inc. v. Rockstar Videos, where the court weighed a club’s trademark rights against Rockstar Games’ First Amendment interest in depicting a fictionalized Los Angeles in “Grand Theft Auto: San Andreas.”[4]

Using the Rogers test, the US Court of Appeals for the Ninth Circuit ruled that Rockstar’s inclusion of the “Pig Pen” club logo — an altered reference to the plaintiff’s “Play Pen” club logo — was protected because it had some artistic relevance and was not explicitly misleading about its source or sponsorship.

This case highlights the courts’ tendency to favor creative uses of protected material when they enhance the expressive goals of a work without confusing consumers.

Copyrights are favored under US law as they arise from the Constitution, i.e., Article I, Section 8, Clause 8. However, the scope of protection afforded copyrights can be tempered by the fair use defense. The multifactor fair use assessment considers the purpose and character of the use of the work, nature of the work, the amount and substantiality of use of the work, and whether the use will affect the market for or value for the work.

Copyright disputes in entertainment frequently are complex with the burden on the defendant to prove that use of copyrighted material falls within the parameters of the fair use defense.

A key example is the 2003 case Elvis Presley Enterprises Inc. v. Passport Video,[5] in which the Ninth Circuit upheld a preliminary injunction against Passport Entertainment for using copyrighted video clips, photographs and music in an Elvis Presley documentary without permission. The court assessed the four statutory fair use factors, determining that Passport’s use was commercial, not consistently transformative, and potentially damaging to the market for the original works.

The documentary utilized substantial portions of copyrighted materials for entertainment rather than scholarly purposes, profiting from content typically licensed by the plaintiffs. This case serves as a reminder that even in creative fields like entertainment, the boundaries of fair use are carefully scrutinized and not every use of copyrighted material will be protected.

Practical Lessons

Brands and copyrights do not exist in a vacuum. They are integrated into our lives and, as such, may be relevant to shaping storytelling, identity and meaning. This makes balancing the potential conflicting interests and needs of creative expression and intellectual property difficult.

The rise of digital and immersive media further complicates this balancing act. Tour visuals, television shows and films can be layered with graphics, CGI, extended reality technology and artificial intelligence-generated content to replicate real world landmarks and trademarks without the need to film on location or the original objects.

These technological shortcuts will only obscure the distinction between artistic expression and commercial exploitation on a global scale. The stakes are elevated for the entertainment industry and IP owners alike, especially as the entertainment industry owns some of the most valuable IP in the world. There are several strategic takeaways that creators and IP owners alike can consider.

For creators in entertainment — such as directors, screenwriters and visual artists — these cases offer a few practical lessons.

Think contextually.

Even if a trademark appears incidentally or serves a narrative purpose, be mindful of how it might be interpreted, especially for sensitive or potentially triggering content. A trademark interwoven seamlessly into the narrative, that is not a focal point and that is not used for sensitive content may be less likely to illicit a negative response from the brand owner.

Document your intent.

Whether in a treatment, script or other artistic work, documentation of artistic intent for the use of brands or works owned by others may help support that the inclusion of the third-party material served a legitimate narrative function.

Consider alternatives.

Sometimes, a fictionalized brand provides the same effect without creating legal risk or sacrificing authenticity.

Obtain clearance.

Evaluate in advance the availability of any proposed use of a third-party brand or work, including any variations. For IP owners, these cases suggest it may be time to rethink the enforcement playbook.

Measure your enforcement.

Overzealous enforcement can backfire, painting a brand as litigious or out of touch. It also may put a lingering spotlight on an otherwise fliting issue.

Pick your battles.

Ascertain whether the use is misleading or creates reputational harm versus being merely unflattering or incidental.

Engage with creatives early.

A collaborative approach may be beneficial to all parties. For example, explore deals to showcase a brand or work resulting in additional revenue and/or consumer engagement.

Conclusion

These disputes underscore the delicate equilibrium between creative expression and intellectual property protection. Both creators and intellectual property owners must carefully weigh how their decisions will either enhance, safeguard or potentially jeopardize their works or intellectual property.

In the media and entertainment industry, this evaluation is often complex as nearly everyone serves in dual roles, like being both a creator and an intellectual property owner. Consequently, it is crucial to recognize that anyone in the industry might find themselves advocating for either side of the argument depending on the circumstances.

This necessitates strategic foresight so that one’s own positions do not inadvertently undermine their stance if they find themselves in the other role in future disputes.

This article was originally published by Law360.

[1] Duke’s ‘White Lotus’ blunder: Sometimes less is more - The Chronicle.

[2] Exclusive | Beyoncé gets cease-and-desist letter from James Dolan’s lawyers over video that depicts her picking up Sphere.

[3] Rogers v. Grimaldi , 875 F2d 994 (2nd Cir. 1989).

[4] E.S.S. Entertainment 2000 Inc. v. Rockstar Videos Inc. , 547 F.3d 1095 (9th Cir. 2008).

[5] Elvis Presley Enters. Inc. v. Passport Video , 349 F.3d 622 (9th Cir. 2003).