Live Nation is defending the use of lookalike Dallas Cowboys Cheerleader uniforms at a trio of My Chemical Romance shows at the Hollywood Bowl last week, saying they were part of an onstage parody protected by the First Amendment.
The iconic cheer squad sued the band and Live Nation last week, claiming that knockoff versions of its signature blue-and-white uniforms were worn by dancers during a mock gun battle onstage. They said the costumes infringed on the squad’s protectable trade dress, and their lawyers sought an emergency restraining order ahead of two more shows this weekend.
No lawyer for the band appeared at what was expected to be a courtroom showdown this week, and a docket entry said an agreement had been reached. Live Nation, for its part, sought to move the case to federal court, where it defended the use of the uniforms in the new filing obtained by Rolling Stone.
The filing includes a declaration from the band’s manager stating that a restraining order was unnecessary because the costumes were never intended for use beyond the Oct. 21, 23 and 24 performances. Live Nation’s lawyers also submitted an email from Tuesday from the band’s music attorney, David Byrnes, telling the Dallas Cowboys Cheerleaders there was “no need to proceed” with the restraining order request because the performances featuring the costumes had ended.
With the restraining order dispute apparently resolved, Live Nation sought to move the remaining case to federal court. In its lawsuit, Pro Silver Star is seeking unspecified profits and damages, along with a trial and a permanent injunction barring My Chemical Romance from using the allegedly infringing costumes in future performances.
“This is a trademark case about a musical group’s artistic expression and the First Amendment,” Live Nation’s new filing states. It argues that DCC’s parent company, Pro Silver Star, is improperly attempting “to use trademark law to line edit theatrical staging at a Los Angeles concert because [it] dislikes the way the show parodied one of the most famous uniforms in the United States.”
Live Nation’s lawyers say the use was “a successful parody” where no viewers believed the dancers were real Dallas Cowboys Cheerleaders. In the skit, the dancers wearing the star-spangled cheer uniforms stormed the stage with rifles drawn, aiming at black-clad troops representing a fictional dictatorship. A mock gun battle followed, according to video of the performance that circulated online and was cited in the lawsuit.
“Recognition is not confusion,” the new filing says. “Observers understood the performance as an allusive, exaggerated, theatrical reference within a My Chemical Romance show.”
Rolling Stone‘s attempts to reach Alex Spiro, the lawyer who filed the lawsuit on behalf of DCC, were not immediately successful. The lawsuit, filed Oct. 23 but not appearing on the Collin County docket until Monday, claimed that DCC’s brand was built on “dedication, character, and community, and on decades of entertaining American troops,” and that the Hollywood Bowl show, where performers were “shown shooting and being shot,” was “degrading” to the brand.
Pro Silver Star said it wasn’t asking My Chemical Romance to change its setlist, narrative, politics, choreography, “or even their decision to put gun-toting performers on stage.” Instead, “Silver Star asks only that those performers not wear the DCC uniform while doing it. The universe of alternative costume designs is effectively unlimited,” it said.
After its final shows at the Hollywood Bowl, My Chemical Romance is due to begin the Asian leg of its ongoing tour on Nov. 7 in South Korea, followed by concerts in Singapore, the Philippines, Thailand, Malaysia, and Indonesia.