Robert Pritikin, the man who composed the rice-a-roni jingle, has generated a fair amount of press recently. Priikin claimed that the use of Hitler’s Globe in Valkyrie, Tom Cruise’s recently released blockbuster, infringed his copyright in the work.  The claim, of course, is frivolous, given that Pritikin isn’t the author of the Globe, only the owner of the tangible item.  Though, Pritikin appears to know exactly what he’s doing.  He recently put the Globe up for sale, and as Techdirt pointed out, there is probably no better way to generate interest.  On the general subject of claiming copyright in an item depicted in a film, the S.D.N.Y. granted motion to dismiss in a similar suit this past week.

In Gottlieb Development LLC, v. Paramount Pictures Corporation, 08 civ 2416 DC (S.D.N.Y. Dec. 29, 2008), the distributor of the “Silver Slugger” pinball machine alleged that Paramount’s use of one of their machine in the movie “What Women Want,” sans permission, constituted copyright and trademark infringement, a violation of N.Y. State Deceptive Trade Practices, and common law unfair competition and unjust enrichment.   Paramount used the “Silver Slugger” in the background of a scene where Mel Gibson and Helen Hunt brainstormed new ways to market products to women.

Judge Chin granted Paramount Pictures’ motion to dismiss on all claims.  In regards to copyright infringement, the Court found that the use of the Slugger sporadically, for seconds at a time, in a three and a half minute scene was de minimis as a matter of law.  Judge Chin distinguished the current suit from Ringgold v. Black Entm’t T.V. Inc., 126 F.3d 70, 75 (2d Cir.1997), where a poster was shown nine times (1.86 to 4.16 seconds at a time, for a total of 26.75 seconds) during a five-minute scene at the end of a television episode.  Further, Judge Chin noted that in Ringgold there was a “qualitative connection between the poster and the show” that was lacking in Paramount’s use of the Silver Slugger.

In regards to the Lanham action, the Court found that Gottlieb failed to allege facts to suggest that Paramount’s use of its trademark would likely cause confusion, or that Paramount’s use was motivated by ill-intent to free-ride on Gottlieb’s good will.  Gottlieb’s counsel forwarded the creative argument that its “business reputation will be injured by any association of its products with the actor Mel Gibson and his purported anti-Semitic beliefs.”  The Court, however, rejected as “absurd” the idea that consumers would “think less” of Gottlieb because of the brief shots of the Slugger and Gibson.

The Court dismissed the New York General Business Law Section 349 Deceptive Trade Practices claim, and found that Gottlieb failed to allege any facts that showed either harm to the public interest or material deception.  Judge Chin found that the unfair competition and unjust enrichment claims were preempted.

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