*Fox Television has scored a legal victory at the 9th Circuit Court of Appeals that will give entertainment companies room to pick titles of artistic relevance even if those titles tread upon registered trademarks.
The dispute centers on its music industry-themed series “Empire,” according to The Hollywood Reporter. In 2015, upon threats from a record label and publishing company that has worked with such hip-hop artists as T.I., Snoop Dogg and Kendrick Lamar, Fox sought declaratory relief that its use of “Empire” wasn’t a trademark violation. Empire Distribution, Inc., the defendant, then brought counterclaims and demanded an injunction.
On Thursday, the 9th Circuit reviewed the district court’s summary judgment decision, and in affirming Fox’s victory, decided to apply the Rogers test, which was first developed by a sister appellate circuit in 1989 in response to Federico Fellini’s 1986 film “Ginger and Fred,” which triggered a lawsuit by Ginger Rogers.
Explains 9th Circuit judge Milan Smith, Jr., “Under the Rogers test, the title of an expressive work does not violate the Lanham Act ‘unless the title 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.’”
Applying the test, Smith says Fox has satisfied the first prong by using “Empire” for artistically relevant reasons including “the show’s setting is New York, the Empire State, and its subject matter is a music and entertainment conglomerate, ‘Empire Enterprises,’ which is itself a figurative empire.”
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