Dallas Cowboys Cheerleaders v. Pussycat Cinema

• Decision Date: 12 March 1979
• Docket Number: No. 79 Civ. 514.,79 Civ. 514.
• Parties: DALLAS COWBOYS CHEERLEADERS, INC., Plaintiff, v. PUSSYCAT CINEMA, LTD., Michael Zaffarano, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

467 F. Supp. 366

DALLAS COWBOYS CHEERLEADERS, INC., Plaintiff, v. PUSSYCAT CINEMA, LTD., Michael Zaffarano, et al., Defendants.

No. 79 Civ. 514.

United States District Court, S. D. New York.

March 12, 1979.

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J. Asa Rountree, Richard I. Janvey, Debevoise, Plimpton, Lyons & Gates, New York City, for plaintiff.

Herbert S. Kassner, Kassner & Detsky, New York City, for defendants.

OPINION

GRIESA, District Judge.

Plaintiff operates a group known as the Dallas Cowboys Cheerleaders. Defendants Pussycat Cinema, Ltd. and Zaffarano are alleged to be connected with the production and exhibition of a motion picture entitled "Debbie Does Dallas."

The action was brought to enjoin the distributing, showing and advertising of this motion picture on the ground of alleged violation of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), and on other theories.

The action was commenced on January 31, 1979. At that time the only defendant served was Pussycat Cinema, Ltd. A motion for preliminary injunction was made against that defendant. No one appeared in opposition to that motion. Nevertheless a hearing was held, and affidavits, testimony and exhibits were received and considered by the Court, together with a substantial brief on the law submitted by plaintiff. The motion was granted on February 13 in a bench decision. The preliminary injunction was signed that day, prohibiting Pussycat Cinema, Ltd. and all persons acting in concert therewith from distributing, exhibiting or advertising Debbie Does Dallas.

Contempt proceedings were instituted to enforce that injunction, resulting in the arrest of certain persons who were involved in the showing of Debbie Does Dallas at a New York movie theater, the Pussycat Cinema 2. The result was that the showing of the film ceased on February 15. On that day defendant Zaffarano appeared in court through counsel, and admitted that he was personally responsible for the showing of the film at the Pussycat Cinema 2, and that the arrested persons were his employees.

On February 16 defendant Zaffarano applied to vacate the preliminary injunction of February 13 directed against Pussycat Cinema, Ltd., insofar as that injunction affected defendant Zaffarano and his showing of Debbie Does Dallas at the Pussycat Cinema 2. Defendant Zaffarano contended that Pussycat Cinema, Ltd. was a defunct corporation, and was not involved in the ownership of the Pussycat Cinema 2 or the showing of Debbie Does Dallas. That motion was denied.¹

Also, on February 16, plaintiff made a motion for an additional preliminary injunction against defendant Zaffarano individually, and moved for a temporary restraining order pending the hearing of the motion for an additional preliminary injunction. The temporary restraining order was granted against Zaffarano individually. The hearing on the motion for an additional preliminary injunction against defendant Zaffarano was held February 27.

The following are my findings of fact and conclusions of law with respect to the motion for preliminary injunction against defendant Zaffarano. The motion is granted.

I.

As already noted, plaintiff operates a group known as the Dallas Cowboys Cheerleaders, consisting of 36 women who perform at professional football games played by the Dallas Cowboys.

The Dallas Cowboys Cheerleaders came into being in 1972. They have appeared at about 90 professional football games since that time. At these games they perform choreographed cheerleading and dance routines. Through these games they have become known to millions of persons attending the games and watching them on television. They have become a highly popular entertainment group.

Their popularity is sufficient that plaintiff receives a steady stream of requests for personal appearances by the group or members thereof. In recent times there have been about 150 to 200 personal appearances per year at such functions as sporting goods shows and openings of shopping malls. Apparently thousands of people will stand in long lines to get the autographs of cheerleaders at personal appearances. These appearances are made for a fee, and plaintiff obtains substantial revenues from these appearances. In addition to their appearances on television in connection with the football games, the Dallas Cowboys Cheerleaders make other television appearances, producing substantial revenues for plaintiff.

Plaintiff also licenses the use of the Dallas Cowboys Cheerleaders name and the distinctive uniform used by the cheerleaders for use in connection with certain products such as posters, playing cards, calendars, and T shirts. Plaintiff derives substantial revenues from this licensing.

Plaintiff has exercised substantial effort and care to promote the popularity of the Dallas Cowboys Cheerleaders and to give them a particular public image. The members of the 36-member group are carefully chosen. Thousands have applied for the small number of positions available. Not only must the cheerleaders have physical beauty, but they must also have dancing ability and they must represent various occupations which can be thought to constitute something of the cross-section of the American woman.

The Dallas Cowboys Cheerleaders must meet standards regarding moral character. For instance, no one is accepted who has been photographed for magazines such as Playboy or Hustler.

The Dallas Cowboys Cheerleaders are also known by the somewhat shorter names of Dallas Cheerleaders and Dallas Cowgirls. The uniform in which they appear and perform consists of a blue bolero blouse, white vest decorated with three blue five-pointed stars on each side of the front of the vest and white fringe at the bottom of the vest, tight white shorts with a belt decorated with blue stars, and white boots.

The evidence shows that the names Dallas Cowboys Cheerleaders, Dallas Cheerleaders, and Dallas Cowgirls have become identified in the public mind with plaintiff's cheerleader group. The evidence further shows that the Dallas Cowboys Cheerleaders uniform has come to be identified as the distinctive uniform of plaintiff's group, and is associated with the Dallas Cowboys Cheerleaders as distinguished from other entertainment groups. This identification and association have been acquired through use of the uniform in Dallas Cowboys Cheerleaders performances and appearances, both live and on television, over a period of about seven years, and through the use of the uniform in the licensed products already described.

It appears that the "world premiere" of Debbie Does Dallas occurred at the Pussycat Cinema at 49th and Broadway, New York City, in October 1978. Plaintiff entertained the hope that the film would promptly pass out of existence and that no court action would be required. However, the film kept showing in New York City, and plaintiff learned of the arrangements for distribution elsewhere. Therefore this action was commenced. At about this time the film was moved from Pussycat Cinema to a nearby theater, Pussycat Cinema 2.

The film Debbie Does Dallas lasts for 90 minutes. It has no other purpose than to display sex acts in minute detail. There are seven women involved in sex acts with various men. The episodes are strung together with what purports to be a kind of narrative. However, the narrative, and any dialogue which is presented, clearly have no purpose but to try to add to the titillation force of the sex acts.

The main character of the film is Debbie, played by one Bambi Woods. Debbie and six other girls are high school cheerleaders in a mythical town. The film starts with some brief scenes of the girls in their high school cheerleading uniforms (not resembling the Dallas Cowboys Cheerleaders uniforms). There are also scenes of some local high school football players. These scenes of the young men and women in their uniforms are full of suggestive sexual poses and talk, shortly followed by scenes of the girls in the nude in their locker room and shower room, where they are joined by some of the local football players also in the nude. In the midst of all this the "narrative" starts to develop. Debbie has been selected to become a cheerleader in Dallas. Although there is no explicit reference to Dallas Cowboys Cheerleaders as being the group she is to join, this idea is clearly intended to be conveyed to the viewer. As will be described, Debbie later appears in a uniform closely similar to that of the Dallas Cowboys Cheerleaders uniform.

Debbie needs to finance her trip to Dallas, and for some unexplained reason her six friends wish to accompany her to Dallas, and also need money for their expenses. They decide to offer sexual services to various local businessmen. These services are to be mainly of the unorthodox kind, since they wish to reserve regular forms of intercourse for their boy friends. The film shows six episodes of sex acts between the girls and the various men. The culminating episode is the last one involving Debbie. Debbie appears in a cheerleader's uniform which is obviously intended to be taken for the uniform of the Dallas Cowboys Cheerleaders, although there are some slight differences. She engages in a round of minutely depicted sex acts with a Mr. Greenfelt, a proprietor of a sporting goods store. During almost the entire sequence the film goes to great pains to have parts of Debbie's cheerleader uniform (resembling the Dallas Cowboys Cheerleaders uniform) in view.

The advertising and promotion of the film Debbie Does Dallas in New York City has consisted of materials displayed in front of the theaters, and advertising in newspapers.

While the film was playing at the original theater — Pussycat Cinema — there was a large marquee, each side of which contained a picture of Debbie in the uniform closely resembling the Dallas Cowboys Cheerleaders uniform. Also, the marquee contained the title of the film and the slogan "STARRING EX DALLAS COWGIRL...