Bit Parts

The U.S District Court for the Middle District of Tennessee, Nashville Division, granted summary judgment in favor of the owner of the restaurant chain “Dierks Bentley's Whiskey Row” in a trademark suit over the use of “Row.” The Row Inc. v. Rooke LLC, 3:16-cv-00687. Rooke has a federally registered mark for “Whiskey Row” that it uses in conjunction with “Dierks Bentley's.” The Row Inc. later obtained a federal trademark registration for and opened a popular restaurant in Nashville named “Genuine Food and Drink The Row Kitchen and Pub.” In 2016, The Row sued Rooke for trademark infringement and for cancellation of the “Whiskey Row” mark. The Row argued its use of “Row” was “arbitrary” and thus entitled to the highest degree of trademark protection. But District Judge Waverly D. Crenshaw Jr. found the mark was entitled to lesser protection as “descriptive” by noting that “in Nashville The Row seems as likely to conjure up images of Music Row as much as it does a restaurant” and that “it is not otherwise particularly strong.” The district judge concluded: “Even though both marks are used in the restaurant business, the parties utilize the same marketing channels, and they will compete head-to-head in Nashville, other important factors weigh overwhelmingly against the likelihood of confusion. These are: The Row mark, apart from being entitled to protection because it is registered, is not particularly strong; its mark looks nothing like the Whiskey Row mark; there is no evidence of actual confusion; and there is nothing to suggest that Whiskey Row sought registration in an effort to play off The Row mark.”

Political Uses of Photos of Artists Ruled Transformative Fair Uses of Copyrights

The U.S. District Court for the Eastern District of Virginia decided that use of photographs — beyond the photographer's permissions in Creative Commons licenses (CCL) — of musicians Kenny Chesney and Kid Rock in online articles about the artists' political perspectives were transformative copyright fair uses. Philpot v. Media Research Center Inc., 1:17-cv-822. District Judge T.S. Ellis III initially noted: “Here, the parties do not dispute that attribution [to plaintiff photographer Larry Philpot] was a material term of the [CCL] license, and the parties agree that defendant publicly displayed the Photographs without attribution. … Thus, a reasonable juror could find that defendant breached the license, and as a result, the license was terminated.” But the district judge further found: “In sum, the defendant's use of the Chesney and Kid Rock Photographs is transformative because defendant's purpose in using the Photographs — to identify the celebrities as pro-life advocates or conservative Senate candidates — was different from plaintiff's purpose in taking the Photographs [to show the artists in concert].” The district judge added: “Notably, other circuits have determined that the use of photographs is transformative where, as here, the use serves purposes beyond mere artistic expression, by informing the public about a newsworthy event, providing commentary, or adding other social benefit.”

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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.