My Chemical Romance Folds to Cowboys Cheerleaders with Law Murky

The Dallas Cowboys Cheerleaders (DCC) sued My Chemical Romance after the  band used DCC’s  recognizable uniform during stage performances of their song “Teenagers” at the Hollywood Bowl on October 21, 23, and 24. After the suit, the band swapped the iconic uniform for a more generic cheerleader outfit for its October 30 and 31 shows, and then the suit was dropped.

Live Nation, the band’s concert promoter, said the intention was never to use the lookalike uniforms after the “not-recurring three-show rock opera.” They also defended the action as parody  protected by the First Amendment.

The swiftness of the resolution leaves the legality of the band’s performance untested and questions the practical effect of the 2023 ruling in Jack Daniel’s Properties Inc. v. VIP Products LLC, which involved a dog toy shaped like a Jack Daniel’s bottle.  In that case, the Supreme Court ruled that the toy parody limited the scope of the Rogers test, a First Amendment-based avenue to use other’s marks within expressive works.

Finnegan partner Naresh Kilaru told Bloomberg Law that the band still would have to justify using the Dallas uniforms in particular.

“My Chemical Romance would have to argue there’s something unique about the Dallas Cowboys Cheerleaders specifically that a generic cheerleader wouldn’t have conveyed,” he said. “Is there a true nexis between them and the message, or is it just gratuitous?”

But Naresh acknowledged there’s an argument against having judges and juries weigh the artistic value of such use.

The troupe’s petition indicated that the cheerleaders do make surprise appearances during other live shows, which Naresh called one of the best facts in its favor. Even under Rogers, that could at least create an issue of fact to get to a jury on whether having apparent Cowboys Cheerleaders on stage in that context is “explicitly misleading.”

This case is far from being the only one that grapples with applying this test. Naresh said the “public policy argument cuts both ways,” considering the interest in avoiding consumer confusion.

“Artists would have to think twice when using a famous mark in an expressive work,” he said.

My Chemical Romance could depose the online commenters mentioned in the cheerleaders’ petition to assess the extent and reasonableness of their confusion, Naresh noted.

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