30
Sep/03

Second Circuit: Spider-Man Billboard Case Dismissed Without Prejudice


The owners of several buildings in Times Square had sued Sony Picutres because the movie SPIDER-MAN had contained digital renderings of those buildings altered to show different ads on the billboards than those found in real-life (presumably depriving the building owner and those advertisers of additional revenue).  The district court dismissed the trademark claim on the ground that no purchaisng decision was affected by the change; the trade dress claim was dismissed because the advertisements were changed so often that there could be no protectable trade dress; and the trespass claim was dismissed because taking the digital photograph of the buildings was not deemed to be the sort of actionable contact with physical property recognized as trespass.

On appeal, the Second Circuit has affirmed the dismissal of the federal claims.  However, it has reversed the dismissai WITH prejudice, instead remanding the case to the District Court to enter a dismissal WITHOUT prejudice, because the District Court should not have exercised supplemental jurisdiction over the state trespass claim.  A NY State Court has not yet ruled on the question as to whether physical damage is an element of trespass – the same issue raised by the Intel v. Hamidi case – and thus dismissal with prejudice was not proper.  Plaintiff can now re-file in state court should it choose to do so. 

Sherwood 48 v. Sony, 02-9100 (Sept 29, 2003) (click on decisions in frame).

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