Netflix Dispute May Alter ‘Source’ in Trademark Fair-Use Analysis
Expert Analysis Column
Published in December 2024 in Law360, this article discusses a trademark dispute between Netflix and Vicky Vox, 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.
UPDATE: In July 2025, after this article was published, the Ninth Circuit Court of Appeals affirmed the trial court’s dismissal of Ms. Vox’s lawsuit. In line with my predictions, the Court ruled that the brief appearance of a Vox-like cartoon character in one TV episode did not identify her as the source of the series, as required to evade the Rogers test. Finding Vox’s trademark claims barred under Rogers, the court remarked: “If a background character with no dialogue in a ten second scene of an animated series does not trigger the Rogers test, then it is hard to imagine when the Rogers test would ever apply.”
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.