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No Trademark Protection for Dirty Dancing Phrase Used in Financial Services Ad

The U.S. District for the Central District of California declined to vacate a prior court order that dismissed Lions Gate Entertainment's trademark claims in a lawsuit over a financial services advertising campaign that included a phrase similar to a signature line “Nobody puts Baby in a corner” from the film Dirty Dancing. Lions Gate Entertainment Inc. v. TD Ameritrade Services Co., 2:15-05024. TD Ameritrade's ad featured the phrase “Nobody puts your old 401k in a corner” along with visuals that evoked Dirty Dancing. The district court ruled in March 2016 that the claims were preempted by federal copyright law. (Lions Gates' complaint also alleged copyright infringement.) In the recent ruling, District Judge Dean D. Pregerson noted: “Plaintiff claims that Defendants have used a slightly altered version of its trademark in advertising for services that Plaintiff argues will cause consumer confusion as to Plaintiff's endorsement or association with those services … even though the advertisements clearly promote TD's financial services and do not mention Lions Gate or Dirty Dancing, or attempt to pass off products of TD as from Lions Gate or vice versa.” District Judge Pregerson further explained: “Lions Gate alleged trademark violations arising 'not only on the alleged mark, but also on other elements from the film Dirty Dancing,' such as an image of a man lifting a piggy bank over his head, which evoked the movie's signature dance lift, and a reference to the song that played during the movie's closing dance scene with the line, '[b]ecause retirement should be the time of your life.'” The district judge concluded: “Together with these other elements, the use of a variant of Lions Gate's trademark phrase in TD's advertisement served to evoke the 'communications, concepts, or ideas' embodied in the movie Dirty Dancing. As such, the Trademark Claims are barred under Dastar [v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003)], as they do not protect rights in a communicative product that are distinct from those already protected by the Copyright Act.”

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Stan Soocher is Editor-in-Chief of Entertainment Law & Finance and a tenured Associate Professor of Music & Entertainment Studies at the University of Colorado's Denver Campus. He is author of the book Baby You're a Rich Man: Suing the Beatles for Fun & Profit (ForeEdge/University Press of New England). For more, visit www.stansoocher.com.