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 Disney tells appeals court 'Toy Story' character didn't copy Evel Knievel
Category:International Legal News  
Subject:Intellectual property   ; Copyright   ; Civil action  
Publish Date:08-11-2022

A U.S. appeals court panel cast doubt Wednesday on whether the owner of the late Evel Knievel's intellectual property could prove that Disney's portrayal of a motorcycle-riding stuntman in the movie "Toy Story 4" violated his rights.
The 9th U.S. Circuit Court of Appeals appeared to agree with a Nevada court's decision to throw out the case, but questioned during oral arguments whether other aspects of the ruling should stand.
K&K Promotions Inc sued Disney in Las Vegas federal court in 2020. It argued that the Toy Story character Duke Caboom — a Canadian stuntman action figure voiced by Keanu Reeves — was based on Knievel, and that the movie and related merchandise infringed the trademark and publicity rights of the famed daredevil.
The court dismissed the claims last year based in part on the 1st Amendment, finding Disney's alleged use of Knievel's persona was transformative, artistically relevant to the movie, and did not mislead viewers into thinking he endorsed it.
K&K's attorney Randall Jones of Kemp Jones told a 9th Circuit panel Wednesday that U.S. District Judge James Mahan was too quick to reject its claims. But the three-judge panel seemed to agree with Disney's defense.
Circuit Judge Johnnie Rawlinson was skeptical that K&K could prove Disney had explicitly led consumers to believe Knievel was associated with the movie, even if it could prove Disney used Knievel's persona as inspiration.
Circuit Judge Daniel Bress also said there were "important differences" between the two personas.
"Is your argument essentially that any time somebody in an expressive work has a motorcycle that jumps over things, and the person is wearing some kind of costume, that that is an infringement on your client's intellectual property?" Bress said.
Jones responded that Duke Caboom had specific confusing similarities to Knievel like a "patriotic suit," a reputation for both "spectacular jumps" and "spectacular crashes," and a similar motorcycle design to Knievel's Stunt Cycle toy.
The judges also questioned some aspects of Mahan's decision, like dismissing the case without prejudice — which normally means it can be refiled — while also denying K&K's request to amend the complaint and issuing a final judgment. Bress called the decision "a little curious."
The panel also probed Mahan's decision to dismiss one of K&K's trademark-related claims without specifically analyzing it.
Disney's attorney Mark Tratos of Greenberg Traurig said the lower court decision was "absolutely correct," and that Mahan had "all the evidence he needed" to make it.
Circuit Judge Bridget Bade was also on the panel.
The case is K&K Promotions Inc v. Walt Disney Studios Motion Pictures, 9th U.S. Circuit Court of Appeals, No. 21-16740.
For K&K: Randall Jones of Kemp Jones
For Disney: Mark Tratos of Greenberg Traurig

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