DENVER (CN) – Does anyone own “Wild America?” After reviewing National Geographic’s arguments in a trademark lawsuit filed by wilderness personality Marty Stouffer, a federal judge proposed a test of artistic relevance Tuesday.
“The court believes that the appropriate question to ask is: Did the junior user have a genuine artistic motive for using the senior user’s mark?” wrote U.S. District Judge William Martinez, appointed by Barack Obama in 2010.
In his federal lawsuit filed this past December, burly, bearded Stouffer claims National Geographic made copycats of his hit show “Wild America” with strikingly similar titles like “Surviving Wild America” and “America the Wild.”
Stouffer’s “Wild America” ran for 12 seasons on the Public Broadcasting Service from 1982 to 1994, and remains in syndication on 140 television networks across the country.
According to the lawsuit, National Geographic Channel executive vice president Steve Burns sought to name a natural history miniseries “Wild Americas” or “The Wildest Americas,” in 2010, but was warned that doing so would violate Stouffer’s trademark. Instead the network released the show as “Untamed Americas,” renamed “Wild Americas” in international markets.
National Geographic additionally released “America the Wild” in 2013, “Surviving Wild America” in 2014 and “America’s Wild Frontier” in 2018.
While Stouffer leaned on the Lanham Act’s protection against unfair competition and right of publicity, National Geographic countered its titles are protected by the First Amendment.
Artistic motives can be protected, Martinez noted in his 45-page order, therefore any nonartistic motives are relevant – including whether there was suspicious timing involved as well as whether National Geographic “added [its] own expressive content to the work beyond the mark itself.”
To illustrate the problems of “minimal artistic relevance,” Martinez imagined a jazz song.
“If a jazz trio writes a wordless piece titled ‘Rosa Parks,’ how does one judge the artistic relevance of that title? Is the title obviously irrelevant (because there are no words in which to ground a finding of relevance) or is it at least arguably relevant (because there are no words through which to confirm a finding of irrelevance)?” Martinez postulated, further acknowledging “incongruity, irrelevance, and randomness can themselves be artistic choices.”
He concluded, “All else being equal, it should be a rare case in which a junior user with a ‘pure heart’ receives First Amendment protection but a junior user with a ‘black heart’ does not.”
Stouffer started creating documentaries in 1964 and registered the trademark for “Wild America” in 1982.
Originally from Fort Smith, Arkansas, Marty and his brother Mark grew up playing around with their family’s 8mm motion picture camera and started traveling the country in 1970 on a mission to “record every animal on the U.S. Department of Interior’s Endangered Species list.”
Over the decades, the Stouffer brothers’ films became recognized for their “slow motion, close-ups, and time lapses to give viewers a more immersive experience than other nature and wildlife documentary programming.”
But Martinez dismissed Stouffer’s claims that National Geographic ripped off his style.
These segments, Martinez noted, “are so standard as to essentially define the nature documentary genre. Stouffer may believe these elements define the nature documentary genre because ‘Wild America’ made them standard. Even if true, they remain unprotectable ideas or procedures.”
The Walt Disney Company gained a controlling stake in National Geographic when it acquired Twenty-First Century Fox in March 2019.
National Geographic did not respond immediately to press inquiries.