Does Rogers v. Grimaldi apply to false advertising claims?

Dickinson v. Ryan Seacrest Enterprises, Inc., No. CV
18-2544-GW(JPRx), 2019 WL 3035090 (C.D. Cal. Mar. 26, 2019)
This dispute over alleged supermodel Janice Dickinson’s
appearance in a reality show is going up to the 9th Circuit.  Here, the district court kicked out Lanham
Act claims for false endorsement, false advertising, and trademark dilution and
declined to exercise supplemental jurisdiction over the related state law
claims.
Dickinson has been a producer, judge, contestant, and/or
guest star in America’s Next Top Model, The Janice Dickinson Agency, I’m a
Celebrity … Get Me Out of Here!, Celebrity Rehab with Dr. Drew, and Celebrity
Big Brother. She allegedly attends charity runway shows and photoshoots without
a fee for the dual purpose of serving charity and “maintaining and building
goodwill in her mark and brand,” and doesn’t voluntarily appear on reality
television shows pro bono.
Rosette is a designer and the founder of Art Hearts Fashion,
a charitable organization that produces runway shows during fashion events. Dickinson appeared as
a runway model pro bono during Los Angeles Fashion Week for Rosette each year
between 2010 and 2016, and Rosette allegedly knew that she wouldn’t do this if she
knew that Rosette was planning to exploit her “celebrity” without her consent
to facilitate a reality television show. In 2016, that’s allegedly what
happened: Dickinson’s appearance at the fashion show became part of an episode
of the Shahs of Sunset series that allegedly made it look like she “intentionally
stole or bullied her way into wearing a romper that had supposedly been
previously selected for Golnesa Gharachedaghi, a lead character.”  The episode was allegedly scripted so that Gharacedaghi
would falsely act as though she was experiencing “trauma and consternation,”
and Gharachedaghi would “intentionally, maliciously and falsely disparage” Dickinson
on camera.  Adding to the intrigue,
defendants apparently say they have a signed release, but Dickinson alleged
that she didn’t sign any release (and thus that defendants faked the release to
reassure others in the corporate hierarchy/insurers; she alleged that the
purported signature doesn’t match her own), or that if she did, it was as a
result of deception leaving her unaware that she was signing anything at all or
that she was signing a release. Alleged fraud in the factum!
Defendants allegedly falsely advertised that the series was
an “unscripted” “docuseries” rather than a largely scripted or fictional
series, and traded off Dickinson’s fame to promote the series.  The use of “True Entertainment” as the name
of a credited production entity associated with the series was also allegedly
false, and “[f]eaturing this credit on the screen at the end of the programming
is intended to make viewers believe that the Series tells ‘true stories.’” [OK,
I’m not a huge fan of Twiqbal, but how do we feel about the plausibility
of this allegation?]  
The promotional material allegedly falsely portrayed her as
a “fashion runway ‘thief’ ” who stole Gharachedaghi’s outfit, causing negative
public reaction, including in YouTube comments. [Is there anything a woman can
do that won’t cause negative YouTube comments?] Two of the marketing
clips for the relevant episode on Bravo TV’s website allegedly used Dickinson’s
mark [her name] to make false statements about the content of the episode to
encourage consumers to “commercially engage with” the episode.
One clip includes the statement: “Did Janice Dickinson Just
Steal GG’s Look?! Evidently she took the outfit GG was supposed to wear on the
runway, and GG is pissed …. ”  [The
alleged falsity of this statement is based on the allegation that Dickinson
didn’t “steal” the look; First Amendment doctrine (outside of TM) generally
protects advertising about the content of noncommercial speech to the same
extent as the content of the underlying noncommercial speech, and thus you
can’t usually turn your defamation claim into a false advertising claim by
challenging the advertising of the noncommercial speech.] Another clip says:
“Did we mention Janice Dickinson makes an appearance?” Dickinson alleged that,
given her fame, fans would believe that she would only “appear” on the series
voluntarily, and that as such, she endorsed the show. [Showing the importance
of Rogers v. Grimaldi as a speech-protective test!]  Similar “interstitial” ads ran during the
episode itself to “tease viewers about upcoming content,” which allegedly
“explicitly” falsely “impl[ied] that if consumers continue to tune in they will
be shown documentary footage of a controversy between Plaintiff and
Gharachedaghi.” In one clip, a cast member says “It’s about to go down,” but the
episode never shows any confrontation  and none occurred.
False endorsement: From an earlier ruling: Rogers v.
Grimaldi
applies. The use of Dickinson’s persona was artistically
relevant.  And the use wasn’t explicitly
misleading.  Dickinson unsurprisingly
cited Gordon v. Drape to say that there was a factual issue about that,
but even Gordon talks about TV programs as being different from greeting cards.
 The Ninth Circuit has already found that
the following allegations don’t suffice as evidence of explicit falsity:  “mere use of the plaintiff’s likeness,” “a
consumer data survey showing confusion,” and written materials accompanying the
work that didn’t explicitly mislead.  The
complaint didn’t allege any “explicit indication, overt claim, or explicit
misstatement” relating to endorsement. 
The beginning credits list cast members, producers, and companies behind
the episode, and Dickinson’s not on that list. And nothing else “suggest[s]”
that Dickinson, the nemesis in one scene of one episode, endorsed or backed the
episode.  “Though the Episode’s allegedly
false narrative portraying Plaintiff as ‘stealing’ the romper may be unethical
or violate some other law, that narrative does not sustain the Rogers explicitly
misleading prong as to Plaintiff’s Lanham Act claims.”  Nor were there any statements outside the
episode that Dickinson was behind the episode. And many of the statements
Dickinson cited were outside of defendants’ control.
False advertising: Under Lexmark, Dickinson needed to
“allege an injury to a commercial interest in reputation or sales.” In the
light most favorable to her, she did so, alleging harm to her reputation,
thereby diminishing the “desirability of Dickinson’s appearance on other media
projects, and her $75,000 appearance fee value.” Did the economic or
reputational injury flow directly from the deception wrought by the
advertising? The court found this a “closer call.” Dickinson alleged that the
episode’s “false narrative” deceived consumers into believing that she was unprofessional,
and thus diminished the value of her celebrity brand.  But that was about the content of the episode,
rather than about the alleged falsity of the “unscripted” advertising claim.
Thus, she didn’t properly allege that the advertising was the proximate cause
of her injury.
Also, false advertising is only actionable under the Lanham
Act when it’s in “commercial advertising or promotion.”  But there are special rules for commercial
speech where ads promote expressive works. Under governing law, “[f]or private
actions, such as tort suits, advertisements that are ‘adjunct’ to a protected
work are entitled to the same immunity from as the underlying work.” All the
ads that Dickinson cited were clips from the episode itself, a few with short
descriptions. They were noncommercial speech for Lanham Act purposes.  Thus, the court applied Rogers to the
false advertising claim.  [Note that this
step is entirely unnecessary if you agree with the idea that the episode promos
aren’t “commercial speech”; the inquiry is over for §43(a)(1)(B) purposes at
this point. That’s unlike §43(a)(1)(A), which courts have held applicable to
noncommercial speech, which was the reason they needed to invent Rogers
in the first place. The court thus expressed some uncertainty about how to
apply Rogers to false advertising about the content of an
expressive work, but that’s a self-created difficulty.]
In a footnote, the court declined to find that Gordon
counseled in favor of finding a factual issue here.  This isn’t a “minimally expressive” work like
a greeting card. [Sigh.]  Gordon
contrasted use “in the creation of a song, photograph, video game, or
television show” with “just past[ing]” a mark into greeting cards, which could
be explicitly misleading. Here, the use of Dickinson’s likeness, image, and
name in the episode, and concomitant promotional materials obviously had
artistic relevance above zero.
Explicit misleadingness: Dickinson alleged that the
“docuseries” advertising misled as to content because the show was scripted,
but that wasn’t enough under Rogers because Rogers requires the
use of the mark to be explicitly misleading. “Plaintiff’s mark has no bearing
on whether or not Bravo advertises their show as a scripted series or reality
television.” [Which is why proximate cause might be the better move here if you
insist on going further than “not commercial speech.”]
Second, Dickinson argued that the ads explicitly misled
about the content of the episode by making her look bad/promising a fight. Not
so.  The ads were all clips of the
episode itself: “A clip of a television episode could not possibly mislead as to
the content of the episode, as it is itself a portion of the content.” And the
additional descriptive statement: “Did Janice Dickinson Just Steal GG’s Look?!
Evidently she took the outfit GG was supposed to wear on the runway and GG is
pissed ….” wasn’t explicitly misleading; it wasn’t even unequivocal. The
short descriptions of the clips “both accurately preview the controversy
portrayed on the Episode, whether the controversy itself was contrived by
Defendants or not.”  “Did we mention
Janice Dickinson makes an appearance?” is also not misleading, since she does.
Dilution: Not commercial speech, no claim.

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