March 4, 2017

Fictional Magazine Accused of Real Infringement

By Bryan K. Wheelock, Principal

The Sporting Times LLC has sued Orion Pictures, inc., Metro-Goldwyn-Mayer Studios, Inc., and others because of the depiction of a  publication titled The Sporting Times in trailers for, and in the actual movie, Spaceman — a biopic about baseball player Bill “Spaceman” Lee.  What isn’t immediately apparent from the Complaint is that the periodical depicted is fictional.  It is not the plaintiff’s publication, and it bears a fictional date nearly two decades before plaintiff’s first issue.

Plaintiff complaints that it is being injured because its trademark has been infringed, and The Sporting Times is negatively portrayed as a publication that venerates and promotes over- the-hill athletes with serious addiction problems—the sort of sensationalist story that it would by all means avoid as it is the antithesis of the clean cut girl or boy next door image it actively promotes.

Plaintiff does use a similar presentation of “The Sporting News” on its website, and apparently used SPORTING NEWS in Old English script in the past:

The current presentation is quite different, however:

Plaintiff has to prove that defendant’s use of a similar title in a fictional publication briefly shown in a movie is an infringement, and the rest of us have to remember that even a fictional product can be accused of infringement.