Briefing: Lee vs. Viacom

Jul 7, 2003  •  Post A Comment

Jessica Litman is a law professor at Wayne State University in Detroit who teaches courses in copyright law, Internet law, trademarks and unfair competition. Her work has been cited by the Supreme Court and reprinted in House hearings. As a follower of the Spike Lee vs. Viacom case, she offered her thoughts about the upcoming trial to TelevisionWeek’s James Hibberd.
TelevisionWeek: What does Spike Lee need to prove to win?
Jessica Litman: He’s making two arguments. Both of them turn on the assertion that some significant portion of the viewing public will associate Spike TV with him, believe he has endorsed it, and that this causes damage two ways-tarnishing his name and confusing the public. He’s going to need to prove that some appreciable portion of the public, in the context of hearing `Spike TV,’ thinks of Spike Lee.
TVWeek: Did the injunction surprise you?
Ms. Litman: I was somewhat surprised to hear the first preliminary injunction had occurred. I was not surprised the appellate division declined to dissolve, because a lot of discretion is usually given to the trial court in order to preserve the status quo.
TVWeek: Viacom argues it will be a First Amendment tragedy if Mr. Lee wins. Could this case set a precedent?
Ms. Litman: I don’t think so. It obviously can be worrisome if people go to court to challenge things that have the same name they do. That suggests the state’s cause of action is way too broad. But the courts have been trying to figure out [trademark law] in a world that’s global, where words have different meanings in different countries.
TVWeek: What do you think of Viacom’s complaint of suffering millions in damages due to the injunction?
Ms. Litman: TNN argues the damages to it are overwhelming and the damages to Lee are minuscule, but that’s not so. If they’re delayed, [TNN] may suffer monetary losses, but it’s not the kind of thing where you can’t unscramble the egg. But if Lee is right, and TNN goes forward with Spike TV, the damage to Lee will already be done.
TVWeek: The case hinges on the public perception of Mr. Lee’s connection to the network. Does the fact that his lawsuit has received so much media attention affect the validity of his argument?
Ms. Litman: I think it will make a difference come trial. The publicity will make it less likely that he’s been damaged.
TVWeek: Some media insiders have speculated that Mr. Lee may be seeking a settlement.
Ms. Litman: That seems unlikely given how concentrated the motion picture and television business is. When you’re in the business you’re always seeking funding. I don’t think anybody in his position would launch a lawsuit just to get a favorable settlement, he would be shooting himself in the foot. I believe the lawsuit is brought in good faith.
TVWeek: Spike Jones Jr. has filed an affidavit supporting Viacom, claiming the injunction could prevent him from producing and marketing a film and play called `Spike’ based on his late father.
Ms. Litman: It’s atmospherics. From a legal standpoint, the affidavit doesn’t mean anything. There’s nothing in the injunction that gives [Mr. Jones] reason for concern. It may cause the trial judge to reconsider the injunction but, then again, he already knew there were lots of people named Spike.
TVWeek: How do you think the case will end?
Ms. Litman: My guess is that, at the end of the day, Spike Lee will find it’s a hard case to prove.