Federal Judge Dismisses Cody-based ‘UFO Magazine’ Lawsuit Against Showtime
"The Truth Is Out There," said the intro to the TV sci-fi series "The X-Files."
A lawsuit by a Cody-based magazine that asserted a trademarked lock on "UFO" is out there, too, a federal court judge ruled Thursday.
Totally out there.
U.S. District Court Judge Nancy Freudenthal in an order dismissed with prejudice -- meaning it can't be refiled in the court again -- a lawsuit filed by "UFO Magazine" that asserted Showtime Network, Inc., violated the law because the magazine had registered the term "UFO."
That was the name of Showtime's four-part documentary series "UFO" in 2021.
In July, Freudenthal dismissed without prejudice a similar lawsuit filed in April, so UFO Magazine filed an amended one.
"UFO Magazine" sought to recover treble damages from Showtime's profits from the series, an order blocking the Network's use of "UFO," punitive damages and other costs.
Freudenthal wrote that the second one add a few more facts than the first one, and that legal precedents even suggested by "UFO Magazine," further underscored her decision to grant Showtime's motion to dismiss the lawsuit.
A federal law -- the 1946 Lanham Trademark Act -- protects a trademark's holder of those who would steal its intellectual property for their own gain.
But that protection only goes so far under the First Amendment, Freudenthal wrote.
Showtime's name of the "UFO" series is an expression of an artistic relevance and it does not mislead people into thinking that the Network somehow misappropriated the magazine's title or content, she wrote.
"The First Amendment limits the Lanham Act's application in an action challenging the title of an expressive work by title," Freudenthal wrote. "Motion pictures and television shows, including documentaries, are among the expressive works protected by the First Amendment."
A representative of UFO Magazine did not return a call seeking comment.
The magazine began in California in 1998 and moved its principal office to Cody in 2018, according to Wyoming Secretary of State records.
In 2007, "UFO Magazine" registered the trademark "UFO" for "'[e]ntertainment in the nature of a television series and motion picture film series,'" according to court documents.
In 2011, and renewed in 2021, the magazine trademarked "UFO" for "'[e]ntertainment services, namely multimedia publishing of books, magazines and electronic publications which deal with unidentified flying objects and related phenomena,'" according to court documents.
Over the years, the magazine has published articles about the historical, cultural and political aspects of UFOs. It also planned to make a movie about Roswell, New Mexico, the location of an alleged alien spacecraft crash in 1947.
"UFO Magazine" has been used in sets for television series and motion pictures including "Race to Witch Mountain" and "I Want to Believe," both produced in 2009, according to court documents.
In mid-2021, Showtime began broadcasting "UFO" on its streaming service without a license, permission or authority from the magazine, according to court documents.
On Dec. 4, the magazine sent a letter to Showtime about its trademark registrations and demanded it stop using "UFO."
It sent a second letter on Dec. 21, and again demanded Showtime to stop using its trademarked name.
"UFO Magazine" then filed its lawsuits in April and August.
Its response to Showtime's motion to dismiss the lawsuit was less than kind, saying that the "UFO Series" was not an "expressive work."
"Rather, it is in substance a compilation and regurgitation of archived and stale tapes and tales that have been cobbled together for the purpose of generation revenue, by titillating subscribers with the false suggestion that it has something new to say.
"It doesn't," according to the magazine.
Regardless, "UFO" has become embedded in our language.
Freudenthal cited "Webster's Unabridged Dictionary" to explain '"the term UFO, an acronym for unidentified flying object entered the English language in the early 1950s and has been used since then to refer to "'flying saucers' and 'any unexplained object[s] moving in the sky, especially one[s] assumed by some observers to be of extraterrestrial origin.'"
The magazine argued in court documents that Showtime could have sought an alternative title for its series such as "Sightings of the Unknown" or "Alien Spacecraft."
And by using its trademarked "UFO," Showtime allegedly misappropriated the magazine's name to make more money, according to court documents.
But in her order, Freudenthal agreed with Showtime's motion to dismiss the lawsuit.
Besides the First Amendment matter, Freudenthal wrote that factors in a federal 2019 case in Colorado -- Stouffer v. Natronal Geographic Partners, LLC -- also supported Showtime.
Some of those factors boiled down to:
- "UFO Magazine's" interest in making a movie or television show hasn't borne fruit.
- Showtime didn't copy anything from the magazine.
- Just because Showtime's series came after the creation of the magazine and its title doesn't mean the Network misappropriated "UFO."
- The series' title and content are about UFOs.
- Just because Showtime has made money from it's series doesn't mean it created the series only to make money. "Financial motives do not render expression non-artistic."