Rogers applies when film is simply named for character

Valencia v. Universal City Studios LLC, No. 1:14–CV–00528, 2014 WL 7240526 (N.D. Ga. Dec. 18, 2014)

 

Valencia, professionally known as Honey Rockwell, sued Universal for invasions of privacy; fraud, false advertising, and unfair competition; and trademark dilution.

 

Valencia alleged that she’s a hip hop dancer and dance teacher, performing under the stage name “Honey Rockwell” since 1994. Valencia, “a native of the Bronx and of Hispanic descent, performed and taught dance at various community dance centers and theaters in the Bronx.”  She also appeared in various dance productions and magazines, and created, produced, and released a music video. 

 

In 2003, Universal released Honey, a movie chronicling “the dreams and struggles of Honey Daniels, a native of the Bronx of Hispanic descent who performs and teaches hip hop dance in the Bronx.” In 2011, Universal released Honey 2, in which a hip hop dancer inspired by Honey Daniels achieves success and fame.  

 

Valencia alleged that this misappropriated her life story, including her teaching and music video appearances; that both she and the character were affiliated with dance studios the Bronx Dance Theater and Hunts Point; that a producer for the film was notified of the similarity; and that she’d been approached and identified as the dancer depicted in Honey, and on one occasion was contacted to appear at a movie release party as “the real [H]oney.”  Valencia alleged that this made her look like a copycat (reverse confusion), damaging her image.

 

The common-law privacy/right of publicity claims were time-barred, since she waited more than two years after the initial release.  Valencia’s unjust enrichment failed because it wasn’t an alternative theory of recovery for a failed contract, as required under Georgia law.

 

Her Lanham Act and Georgia trademark claims were subject to the same analysis, and failed because she didn’t sufficiently allege rights in the mark “Honey” as opposed to the mark “Honey Rockwell.”  Rights in the latter, which the court assumed she sufficiently pled, couldn’t be sufficient to generate secondary meaning in “Honey.”

 

However, the court found that Valencia’s Georgia Uniform Deceptive Trade Practices Act Claim did not fail for the same reason, since it provided a cause of action for conduct that caused “likelihood of confusion or of misunderstanding as to the source, sponsorship, [or] approval ... of goods or services,” or “as to affiliation, connection, or association with ... another,” or “[r]epresents that goods or services have sponsorship[ or] approval ... that they do not have.” Given Valencia’s allegation that she’d been approached as “the real Honey,” this count couldn’t be dismissed as not plausibly alleged.

 

But then there’s Rogers.  Valencia’s argument that First Amendment protection for the movies was limited because they’re sold for profit was unavailing.  The Eleventh Circuit adopted Rogers in Univ. of Alabama Bd. of Trustees v. New Life Art, Inc., 683 F.3d 1266 (11th Cir. 2012). (Thank you, Mark McKenna!)  The title Honey was artistically relevant because it was the protagonist Honey Daniels’s first name.  Honey 2 was artistically relevant because the protagonist of that movie drew inspiration from Honey Daniels.

 

Comment: without noting that it’s doing so, the court resolves a predicate question some courts have not properly understood.  The title is artistically relevant to the content of the film, even though it’s not necessarily a reference to Valencia.  That suffices, as it should.