Brian Armstrong: Crypto is at its Blockbuster vs Netflix moment, where businesses adopt onchain due to need, not just want.

Brian Armstrong: Crypto is at its Blockbuster vs Netflix moment, where businesses adopt onchain due to need, not just want.

On July 28, 2025, the Ninth Circuit affirmed the dismissal of a Lanham Act false endorsement suit brought by drag performer Lance Hara (known professionally as Vicky Vox) against Netflix over an animated cameo in the comedy series Q-Force. Vox alleged her animated likeness appeared without permission in a ten-second scene, an official teaser trailer, and a promotional still image, claiming this depiction implied her endorsement or affiliation, violating Section 43(a) of the Lanham Act [1].

The district court dismissed her claims under Rule 12(b)(6), and the Ninth Circuit affirmed, clarifying the applicability of Rogers v. Grimaldi after the Supreme Court's decision in Jack Daniel's Properties, Inc. v. VIP Products LLC [2]. The Ninth Circuit analyzed whether and to what extent the Rogers First Amendment test—balancing trademark rights against free expression—still applies following Jack Daniel's.

Under Rogers, expressive works face liability only if their use (1) has zero artistic relevance or (2) explicitly misleads consumers regarding endorsement or source. This standard demands explicit deception, not mere confusion. The Supreme Court held in Jack Daniel's that Rogers does not apply when trademarks primarily function as source identifiers [2]. However, the Ninth Circuit clarified that Rogers still applies when a likeness or mark is used purely for expressive purposes, rather than as source identifiers.

For purposes of the motion to dismiss, the court accepted Vox's allegations as true, thus treating Netflix's purported depiction of Vox as expressive—not promotional—because her character appeared briefly and served solely to enhance comedic realism. The Ninth Circuit easily found Netflix's use of Vox's likeness artistically relevant under the first Rogers factor. Featuring a drag queen in a West Hollywood LGBTQ spy comedy clearly advanced the show's thematic authenticity, a point Vox did not dispute.

As to the second Rogers prong, Vox argued viewers mistakenly believed she endorsed the show. The court acknowledged potential confusion but emphasized that mere confusion is insufficient under Rogers. The Ninth Circuit precedent holds that even substantial evidence of consumer confusion fails Rogers absent explicit deception. Thus, because Vox alleged no explicitly misleading conduct, her claim failed, justifying the district court's order of dismissal.

In sum, the Ninth Circuit's holding is a welcomed decision for the creative industries, as it provides crucial clarity following Jack Daniel's, affirming Rogers' continued robust protection for expressive, non-source-identifying uses.

References:
[1] https://www.marketscreener.com/news/hara-v-netflix-inc-ninth-circuit-reaffirms-rogers-test-for-expressive-works-post-jack-daniel-s-ce7c5ed8d98cf020
[2] https://www.marketscreener.com/news/hara-v-netflix-inc-ninth-circuit-reaffirms-rogers-test-for-expressive-works-post-jack-daniel-s-ce7c5ed8d98cf020