Netflix Dispute May Alter ‘Source’ in Trademark Fair-Use Analysis
Expert Analysis Column
“A lawsuit filed by a drag queen against Netflix tests the impact of the U.S. Supreme Court’s decision last year on the scope of First Amendment protection for expressive works that utilize trademarks in a creative fashion . . . . If the court sides with Netflix, we may see future plaintiffs shying away from false endorsement claims where possible, in favor of false designation of origin claims, to have the best chance of blocking Rogers analysis.”
Published in December 2024 in Law360, this article discusses a trademark dispute between Netflix and a drag queen who was portrayed in a Netflix animated series without her permission. In these types of cases, defendants like Netflix have greater First Amendment latitude, under the Rogers fair-use defense, to use others’ trademarks when the use does not identify the “source” of a product or service. The article explores what it means to identify “source” when a celebrity’s image/likeness is used in entertainment media in a manner that allegedly constitutes a false endorsement by the celebrity. The article was published as an expert analysis piece in December 2024 in Law360, the nation’s largest legal news-dedicated publication.
Citation: Sara Gold, Netflix Dispute May Alter ‘Source’ in TM Fair-Use Analysis, Law360 (Dec. 6, 2024, 5:46 PM), available at https://www.law360.com/ip/articles/2270141/netflix-dispute-may-alter-source-in-tm-fair-use-analysis.