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LOS ANGELES (CN) — A federal judge on Monday declined to throw out a copyright infringement lawsuit that accuses Tesla and Elon Musk of using, without permission, an image of “Blade Runner 2049” at the carmaker’s “We, Robot” event last year to promote its Cybercab.
U.S. District Judge George Wu refused at this point in the litigation to decide whether there’s substantial similarity between the image from the 2017 movie showing the main character, K, in a duster against the background of post-apocalyptic urban ruin bathed in orange light and the video clip from the Tesla event that shows Musk in a trench coat looking at a similar cityscape with the words “NOT THIS” projected in the upper corner of the screen.
In his tentative decision, the judge said Tesla and Musk had not adequately addressed the claim that they used artificial intelligence to create a copy of the “Blade Runner 2049” image after Alcon Entertainment, the production company that made the movie, denied them permission to use it for the cybercab event.
Kristen McCallion, an attorney for Tesla and Musk, tried to persuade the judge that it shouldn’t matter how the work was created and that Wu should apply the so-called extrinsic test for copyright infringement. According to Tesla and Musk, they licensed an image from a stock photo agency and prompted an AI-driven image editor to add “Elon Musk in trench coat looking into the city.”
Wu, however, wasn’t persuaded that this was enough for him to deal with the “literal copying” accusation.
“Because Musk and Tesla did not enunciate a way to successfully dispose of plaintiff’s ’literal copying’ theory in their motion, at a bare minimum it – and the direct copyright infringement claim in general – survives this motion against them,” wrote Wu, a George W. Bush appointee. “As such, Musk’s and Tesla’s ‘substantial similarity’-directed argument, and the numerous ways in which plaintiff believes it survives those arguments, are not resolved at this time.”
On the other hand, the judge didn’t see much merit in the trademark infringement claims over Musk’s use of the name “Blade Runner” at the event, noting that the Tesla CEO employed the name “for an artistically relevant purpose and clearly did not explicitly mislead any consumers as to source or content.”
At the end of the hearing, after allowing Alcon to amend its complaint and Tesla and Musk to redo their motion to dismiss, the judge urged both sides to settle the case because, even if the production company was to prevail, any damages would be insignificant.
Alcon, an independent movie and television company, sued Tesla and Musk shortly after the Oct. 10 event on the Warner Bros. Discovery studio lot in Burbank, California.
Alcon claims the use of images reminiscent of the film in Tesla’s marketing campaign was an intentionally malicious move that violated copyright and false endorsement laws. Not only did it cause potential confusion with other car brands Alcon is in partnership talks with during the production of a new Blade Runner TV series, the production company argued, but the perception of being connected to Musk may also stain Alcon’s reputation.
That unwanted brand affiliation didn’t just last for 11 seconds in the room where Musk showed the image during his speech. Thanks to livestreams of the event and reposts that reached millions of views on the Musk-owned X, formerly Twitter, “the false affiliation between BR2049 and Tesla is irreparably entangled in the global media tapestry, all as defendants knew would inevitably happen, and amplifying the damage and confusion risks,” Alcon says in its complaint.
At the “We, Robot” event last year, Musk said that while he liked “Blade Runner,” he didn’t want to live in such a future and contrasted that with one where people move around in autonomous vehicles. To underscore the point, the event showed the short, Blade Runner-esque video with the words “NOT THIS.”
The original 1982 “Blade Runner” movie, directed by Ridley Scott, is set in a dystopian Los Angeles where a group of synthetic, replicant humans are tracked down by a policeman after escaping from a space colony.
At Monday’s hearing, Alcon’s attorney Edward Anderson argued that the so-called Rogers test, from the Second Circuit Court of Appeals landmark Rogers v Grimaldi decision, shouldn’t apply to a lawsuit that pertains to a trademark based solely on an advertisement as in the “We, Robot” presentation.
The Rogers test deals with the question of whether a purportedly infringing work is protected under the First Amendment right to free speech if it is a creative expressive work. In his tentative decision, Wu had concluded that in the case of the “We, Robot” presentation, Alcon had been unable to argue that the “Blade Runner” mention wasn’t artistically relevant to the underlying work.
Anderson pointed out that in a recent trademark case before the U.S. Supreme Court, Justice Neil Gorsuch expressed reservation about the Rogers test, observing that “judges make for pretty lousy art critics."
“The Ninth Circuit likes Rogers more than the Supreme Court likes Rogers,” the attorney said. “They apply it way beyond what it is intended for.”
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