Iconic movie scene allows copyright but not TM claim against multimedia installation

Harold Lloyd Entertainment, Inc. v. Moment Factory One,
Inc., No. LA CV15-01556, 2015 WL 12765142 (C.D. Cal. Oct. 29, 2015)|
Another blast for the past—I would really like to know more
about the Westclip algorithm, but I can’t complain too much about the magic
machine that brings new knowledge straight to my inbox.
HLE sued Moment for copyright infringement and false
designation of origin based on HLE’s copyright in the 1923 silent film Safety Last, starring Harold Lloyd.  “The film’s closing scene features its
principal character, played by Harold Lloyd, dangling from the hands of a large
clock.”  Moment’s multimedia work, the
“Time Tower,” included a video of a man dangling from the hands of a large
clock.  The final chase/climb scene in Safety Last is about seven minutes long;
Lloyd dangles from the clock for about a minute. HLE licensed the Clock Scene
for use the films Back to the Future
and Hugo for scenes in which a
character dangled from the hands of large clock.
 

Lloyd scene

Comparison from complaint

screenshot from video of installation

The Time Tower video is 87 minutes long, with 14 distinct
segments.  One segment is “Silent Movie,”
lasting nearly three minutes; it features a man climbing a building past
various characters, “including a knight in shining armor, a monster reading a
newspaper, a conductor and a socialite.” As part of various shenanigans, the
climbing man grabs the hands of a clock that is on the outside of the building,
and hangs from them for about 10 seconds.  The scene was allegedly called the “Harold
Lloyd tower theme” in pre-production stills. HLE alleged that numerous
consumers were expressly and explicitly deceived and confused into believing
that Moment’s products and/or services were affiliated with Harold Lloyd and
HLE.
Moment argued that there couldn’t be substantial similarity
between Safety Last, a 73-minute film,
and the Time Tower video, because of the small amount of time where similarity
existed.  But the court found obvious
similarities in the two scenes, and that was enough to avoid a motion to
dismiss, because if what has been copied is qualitatively important, a fact
finder can find substantial similarity and HLE alleged that the scene at issue
was “one of the most iconic” images in cinema.  Fair use also couldn’t be resolved on a motion
to dismiss, including questions of transformativeness and market  harm.
However, false designation of origin/false endorsement
claims failed because of Rogers.  (Or Dastar?The Time Tower video was an expressive work;
the use of Lloyd and the alleged clock scene “trademark” had at least some
artistic relevance, since the scene was “a tribute to the silent era.” Any
reference to “one of the most iconic images in cinema” was artistically
relevant to a tribute to silent movies.
And there was nothing explicitly misleading about the
use.  HLE argued that the Time Tower
video and the website including pre-production stills referring to the scene at
issue as the “Harold Lloyd tower theme” were misleading.  But neither had any explicitly misleading content. There was no direct reference to
Lloyd, and use of a mark alone isn’t explicity misleading; to hold otherwise
would render Rogers a nullity.

This result also doomed the UCL and common law unfair
competition claims.

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