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Ninth Circuit:
Incidental Use of Drag Queen’s Likeness in Cartoon Is Not Misappropriation of Identity
Judges Say Lanham Act Isn’t Violated Because There Is No Suggestion That Person Depicted Is Source of Work
By a MetNews Staff Writer
Use of the likeness of a performer, in cartoon form, for 10 seconds in an episode of an animated television series, as well as including the depiction in a trailer for the installment and a publicity still, does not constitute a misappropriation in violation of the Lanham Act, the Ninth U.S. Circuit Court of Appeals held yesterday.
That act creates civil liability on the part of “[a]ny person who shall affix, apply, or annex, or use in connection with any goods or services...a false designation of origin, or any false description or representation...and shall cause such goods or services to enter into commerce.”
The opinion, by Judge Gabriel P. Sanchez, affirms the dismissal, with prejudice, of a lawsuit filed by Lance Hara—a drag queen who is professionally known as Vicky Vox—against Netflix and others. The order of dismissal, by District Court Judge R. Gary Klausner of the Central District of California, came on Oct. 26, 2023.
Sanchez applied the “Rogers test”—derived from the Second Circuit’s 1989 decision in Rogers v. Grimaldt. In that case, actress/dancer Ginger Rogers (since deceased) challenged the capitalizing on her identity in the title of a movie, “Ginger and Fred.”
It was held in that decision that the Lanham Act is not breached by appropriating someone’s identity unless the use “has no artistic relevance to the underlying work whatsoever, or, if it has some artistic relevance, unless the title explicitly misleads as to the source or the content of the work.”
Novel Issue
Sanchez said in yesterday’s opinion:
“This case presents a straightforward, but nonetheless novel, question of law: In light of the Supreme Court’s narrow decision in Jack Daniel’s Properties, Inc. v. VIP Products LLC…, does the Rogers test apply to a trademark infringement claim involving an animated television series where the allegedly infringing mark was not used to designate the source or origin of the show?... Given the fleeting use of Vicky Vox’s (“Vox’s”) image and likeness ‘solely to perform some other expressive function’ on the Netflix show, Q-Force, the answer is yes.”
Jack Daniel’s involved a dog toy that looked like a bottle of Jack Daniels Tennessee whisky. The 2023 decision says the Rogers test does not apply “when the accused infringer has used a trademark to designate the source of its own goods—in other words, has used a trademark as a trademark,” and that the case is confined to “non-trademark uses.”
Test Applies
Sanchez declared:
“We conclude that the Rogers test applies because the alleged ten-second use of Vox’s image and likeness in one episode of Q-Force and the related teaser and still image in no way suggests or identifies Vox as a source or origin of the show.”
Q-Force was a series depicting a gay spy. In the 10-second portion of the episode in question, a likeness of Vox was seen in the background in a bar scene.
“While it is understandable that Vox would not want her image to be reduced to a prop or background element, the allegations fail to establish that Vox’s likeness was used by Defendants as a mark,” Sanchez wrote.
He remarked:
“Vox’s likeness, along with three other distinctive-looking drag queens, helps ground the scene of a West Hollywood gay bar in realism.”
The case is Hara v. Netflix, 23-3768.
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