Rogers Gets A Rewrite: District Court Modifies First Amendment Analysis For Lanham Act Claims

Since the 1989 case of Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989), courts have applied the Rogers test when an artistic work is alleged to have infringed a Lanham Act-protected right.  With litigants locking horns over the titles and other creative elements of their nature documentaries, the U.S. District Court for the District of Colorado proposed a revision to the two-pronged Rogers test in the case of Stouffer v. Nat’l Geographic Partners, LLC, No. 18-cv-3127-WJM-SKC, 2019 U.S. Dist. LEXIS 140947 (D. Colo. Aug. 20, 2019).

Plaintiffs Marty Stouffer and his eponymous production company produced and hosted a popular nature documentary series called Wild America, which aired for decades on PBS.  Stouffer and National Geographic had discussed the possibility of National Geographic licensing or purchasing some of his series, but National Geographic ultimately declined.  Stouffer then declined to give National Geographic his permission to title an upcoming natural