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Twentieth Century Fox Television v. Empire Distribution, Inc.

United States Court of Appeals, Ninth Circuit

November 16, 2017

Twentieth Century Fox Television, a division of Twentieth Century Fox Film Corporation; Fox Broadcasting Company, Plaintiffs-Appellees,
v.
Empire Distribution, Inc., Defendant-Appellant.

          Argued and Submitted October 3, 2017 Pasadena, California

         Appeal from the United States District Court No. 2:15-cv-02158-PA-FFM for the Central District of California Percy Anderson, District Judge, Presiding

          John M. Bowler (argued), Michael D. Hobbs, and Lindsay Mitchell Henner, Troutman Sanders LLP, Atlanta, Georgia; Paul L. Gale and Peter N. Villar, Troutman Sanders LLP, Irvine, California; for Defendant-Appellant.

          Daniel M. Petrocelli (argued), Molly M. Lens, and J. Hardy Ehlers, O'Melveny & Myers LLP, Los Angeles, California; James W. Crooks, O'Melveny & Meyers LLP, Washington, D.C.; for Plaintiffs-Appellees.

          Before: DIANA GRIBBON MOTZ, [*] MILAN D. SMITH, JR., and JACQUELINE H. NGUYEN, Circuit Judges.

         SUMMARY [**]

         Lanham Act / First Amendment

         Affirming the district court's summary judgment in favor of Twentieth Century Fox Television and Fox Broadcasting Company, the panel held that Fox's use of the name "Empire" was protected by the First Amendment, and was therefore outside the reach of the Lanham Act.

         Fox sought a declaratory judgment that its television show titled Empire and associated music releases did not violate the trademark rights of record label Empire Distribution, Inc. Empire counterclaimed for trademark infringement and other causes of action.

         The panel explained that when an allegedly infringing use is in the title or within the body of an expressive work, the Rogers test is used to determine whether the Lanham Act applies. The panel held that the Rogers test applied to Fox's use of the mark "Empire." The panel concluded that the first prong of the test was satisfied because it could not say that Fox's use of the mark had no artistic relevance to the underlying work; rather, the title Empire supported the themes and geographic setting of the work. The second prong of the test also was satisfied because the use of the mark "Empire" did not explicitly mislead consumers.

          OPINION

          M. SMITH, CIRCUIT JUDGE.

         Empire Distribution, Inc. appeals the district court's grant of summary judgment in favor of Twentieth Century Fox Television and Fox Broadcasting Company (collectively, Fox). Empire Distribution argues that the district court erred substantively and procedurally in holding that Fox's use of the name "Empire" was protected by the First Amendment, and was therefore outside the reach of the Lanham Act, ch. 540, 60 Stat. 441 (1946) (codified as amended at 15 U.S.C. § 1125). We disagree, and affirm.

         FACTUAL AND PROCEDURAL BACKGROUND

         Empire Distribution, founded in 2010, is a well-known and respected record label that records and releases albums in the urban music genre, which includes hip hop, rap, and R&B. Empire Distribution has released many albums by established and lesser-known artists as well as music compilations with titles such as EMPIRE Presents: Ratchet Music, EMPIRE Presents: Yike 4 Life, and EMPIRE Presents: Triple X-Mas.

         In 2015, Fox premiered a television show titled Empire, which portrays a fictional hip hop music label named "Empire Enterprises" that is based in New York. The show features songs in every episode, including some original music. Under an agreement with Fox, Columbia Records releases music from the show after each episode airs, as well as soundtrack albums at the end of each season. Fox has also promoted the Empire show and its associated music through live musical ...


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