The opinion of the court was delivered by: Owen, District Judge.
Once upon a time, at a gathering of many thousands in New
York's Times Square for the "World Unity Festival," the crowd
was murderously attacked by the jet-powered Green Goblin, who
was, however, eventually put to flight by the timely arrival of
Spider-Man. This event was memorialized on film, which swept the
almost totally advertising-encrusted buildings surrounding Times
Square, including New York City's Municipal Building (with an
added balcony) which had been digitally removed uptown to be on
the west side of the Square.
This memorialization has spawned an action by three
plaintiffs, owners of certain of the advertising-encrusted Times
Square buildings*fn1 claiming that the memorializers of the
event digitally substituted several different advertising
billboards in place of those actually there at the time of the
event.*fn2 This, they claim, violates trademark and trade
dress law. They assert secondary meaning as to their changing
displays,*fn3 and unfair competition and false endorsements,
which, they contend, raises confusion in the film's viewers'
minds as to their several buildings' association with the
substituted advertisements. They also claim trespass in
defendants' laser filming the facades of their advertising
This case involves defendant Sony's 2002 motion picture
"Spider-Man." To make the scenes in question, Sony took a number
of digital pictures of the total surroundings in the actual
Times Square, which included the plaintiffs' three buildings,
and then, through digital technology, created its modified
version of Times Square in which to place the action in the
scenes in question. Plaintiffs' buildings are just fleetingly
visible from time to time as background in these peripatetic
As to plaintiffs claim of confusion — as between whom was any
purchasing decision affected? Lang v. Retirement Living Publ'g
Co., Inc., 949 F.2d 576 (2d Cir. 1991); as to trade dress —
these buildings constantly change their advertisement dress, FM
103.1 v. Universal Broad. of New York, 929 F. Supp. 187 (N.J.
1996); and trespass? — bouncing a laser beam off a building to
create a digital photograph? Light beams bounce off plaintiffs'
three buildings day and night in the city that never
Finally, what exists here is for artistic purposes a mixture
of a fictionally and actually depicted Times Square, which is
central to a major scene in the movie thereby serving the
theatrically relevant purpose of orienting the viewer to the
location, New York Racing Assoc. v. Perlmutter Publ'g, Inc.,
959 F. Supp. 578 (N.D.N.Y. 1997). This has First Amendment
protection, Cliffs Notes, Inc. v. Bantam Doubleday Dell Publ'g
Group, 886 F.2d 490 (2d Cir. 1989). Observing the digital
manipulation of the actual Times Square environment further
removes plaintiffs' contentions from viability.
Defendants' motion for judgment on the pleadings dismissing
the complaint with prejudice is ...