My Chemical Romance is facing a lawsuit from the Dallas Cowboys Cheerleaders after the band’s backup dancers performed in look-alike uniforms. Here’s what the case claims — and what legal experts think about it.
Filed on Friday (Oct. 23) in Texas court and obtained by Billboard, the case centers on the band’s current Hollywood Bowl run for anniversary of The Black Parade, in which dancers in similar blue-and-white uniforms stage a faux firefight with rifles as part of a theatrical performance set in a dystopian future.
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The case, filed by the cheerleaders’ parent company Pro Silver Star, is seeking an immediate restraining order barring the band from continuing to use the uniforms, including in the final two shows in Los Angeles this upcoming weekend.
“Silver Star is not litigious, and it takes no issue with MCR’s music, its artistic ambitions, or any message defendants seek to convey,” writes Alex Spiro, the well-known celebrity litigator representing the cheerleaders. “Silver Star does not ask defendants to change their setlist, narrative, politics, choreography, or even their decision to put gun-toting performers on stage.
“Silver Star asks only that those performers not wear the DCC Uniform while doing it,” the company writes. “The universe of alternative costume designs is effectively unlimited.”
What is this lawsuit claiming?
Silver Star claims that My Chemical Romance, as well as concert promoter Live Nation, infringed their trademark rights by using the phony Cowboys Cheerleader uniforms on stage.
Trademark law is premised on the idea that consumers will confuse one brand for another when used on similar products. For instance, Budweiser could easily sue an upstart beer called Budwieder, or Nike could take action against a bootleg apparel company that mimicked the Swoosh.
In the new case, the cheerleaders claim their outfits are just such a trademark — an “instantly recognizable symbol of one of the most famous brands in American entertainment,” built up over many decades by “regularly monitoring and policing unauthorized uses” of it.
When My Chemical Romance used the uniforms on stage, Silver Star’s lawyers claim that it caused exactly the kind of consumer confusion that trademarks are meant to prevent — that fans literally thought it was the Dallas Cowboys Cheerleaders up on stage with the band.
“Audience members at both shows and online commentators understandably believed that the performers were the real Dallas Cowboys Cheerleaders and said so in social media posts that continue to circulate,” lawyers for the cheerleaders write.
The case cites specific posts, including a “thread in an online forum devoted to DCC” in which fans “debated” whether the dancers were real Dallas cheerleaders. Another post came from a fan who said they recalled “watching the Dallas Cowboys Cheerleaders come out during ‘Teenagers’ in MCR’s L.A. set.”
Will the case hold up in court?
Trademark law experts who spoke with Billboard say the case against My Chemical Romance might have grabbed headlines, but is seriously flawed when it comes to the actual legal merits, thanks to the First Amendment and its protections for free speech.
“This case is the poster child for why the First Amendment matters,” said David Bernstein, a veteran litigator at the law firm Debevoise and one of the country’s leading trademark lawyers.
Lawsuits over the unauthorized use of trademarks in expressive works — songs, books, movies, theater, and so on — always face a difficult time in court. Starting with a famous case involving Fred Astaire and Ginger Rogers, courts have ruled for years free speech rights generally trump trademark rights. Under that standard, trademark owners can only sue if their brand is completely irrelevant to the artistic work, or if an artist used it in a way that explicitly misled consumers.
That’s an intentionally difficult standard to meet, designed to shield creativity from legal attacks. And experts say that the My Chemical Romance situation — a rock band using the famous cheerleaders of “America’s Team” in a stage show that satirizes modern American culture — is exactly the kind of case that’s protected by it.
“Trademark law stops people from selling knockoff uniforms or passing themselves off as the Dallas Cowboys Cheerleaders. It doesn’t give DCC a veto over a rock opera,” says Eric Ball, another longtime trademark litigator from the law firm Fenwick. “Dressing performers as a piece of Americana in a dystopian stage show is commentary, and should be protected by the courts.”
The music industry has seen this kind of thing before. In 1997, toymaker Mattel sued MCA Records over Aqua’s smash hit “Barbie Girl,” arguing that the song infringed the company’s trademark rights to the iconic brand of dolls. But a federal appeals court ruled in 2002 that a trademark doesn’t automatically entitle someone to “quash an unauthorized use of the mark by another who is communicating ideas or expressing points of view.”
The Barbie lawsuit famously ended with a ruling in which the appeals court admonished that “the parties are advised to chill.” Twenty years later, Ball says that “same advice works here” for the case filed the Dallas Cowboys Cheerleaders: “DCC owns a trademark, not Americana,” he says.
What comes next for the case?
The cheerleaders are seeking a temporary restraining order, which would immediately bar the band from continuing to use the blue-and-white uniforms in upcoming shows, including the final two Hollywood Bowl residence shows set for this Friday (Oct. 30) and Saturday (Oct. 31).
Silver Star says it sent cease-and-desists first, then presented the band’s reps with a copy of the planned lawsuit prior to the Oct. 23 concert, but that neither effort succeeded and they are now facing the threat of “ongoing and irreparable harm.”
“Each night the counterfeits appear, tens of thousands more people see DCC’s uniform in a gunfight, and each video and repost carries that image further,” the company writes. “Those impressions cannot be recalled.”
Such requests for quick injunctions are, by their nature, fast-tracked in courts, and Silver Star will presumably seek a quick ruling before this weekend’s shows. If denied, they would still proceed with their lawsuit, but the band will be able to continue using the costumes while the case plays out.
As the lawsuit moves ahead, the cheerleaders will seek to show that their case is strong enough to overcome free speech safeguards. In their initial filings, they already started making that case — arguing they are not trying to stifle the band’s “artistic ambitions” or silence “any message defendants seek to convey.”
“The First Amendment is no defense here,” lawyers for Silver Star write. “If defendants want cheerleaders to evoke Americana, cheerleading is itself a distinctly American tradition, and any cheerleading costume would serve… What defendants may not do is borrow DCC’s uniform, and DCC’s goodwill, to do it.”
In a bit of cosmic legal coincidence, that argument relies on a famous 1979 case in which these very same Dallas Cowboys Cheerleaders successfully sued for trademark infringement over a pornographic movie called “Debbie Does Dallas.” That ruling, by a New York federal appeals court, said the smutty movie could have still been made without using the Cowboys branding specifically.
But according to Bernstein, the trademark attorney, that ruling is long out of date and has since been “completely disregarded” by later rulings on the First Amendment, meaning the same dispute “would never be decided that way today.”
“I can understand why they’re not happy,” Bernstein says. “But that is the cost of being as famous and well known as the Dallas Cowboys Cheerleaders. The thing about being iconic is that you have to accept that you are part of the conversation.”