Ninth Circuit affirms Disney win in Evel Knievel suit
Stunt rider took issue with Keanu Reeves’ character in hit Disney movie | Lawsuit didn’t survive the Rogers test.
The US Court of Appeals for the Ninth Circuit has ruled that Keanu Reeves’ stuntman character Duke Caboom in Disney’s “Toy Story 4” didn’t unlawfully copy the late Evel Knievel's persona.
In a ruling handed down yesterday, August 22, the Ninth Circuit concluded that the First Amendment protected Disney’s work from the infringement suit.
The Ninth Circuit held that the lawsuit didn't state a plausible claim that survives the Rogers test—a test applied to artistic works to balance potential trademark infringement with First Amendment rights.
Under Rogers v Grimaldi, trademarks can be used without permission in expressive works if the use has artistic relevance and doesn’t “explicitly” mislead consumers as to the source or content of the work.
K&K Promotions (which owns the Knievel rights and brand) sued Disney back in September 2020, accusing Disney of appropriating Knievel’s likeness and trademarks.
It argued that Caboom—a 1970s toy based on a Canadian motorcycle daredevil and stuntman—was based on Knievel whose daredevil career began in the 1960s, when he toured the US performing dangerous motorcycle jumps and surviving crashes.
Last year, the US District Court for the District of Nevada ruled that K&K’s claims failed under the Rogers test.
Now, the Ninth Circuit has come to the same conclusion.
“Duke Caboom clearly has artistic relevance. And K&K did not allege sufficient facts that would show the character was explicitly misleading as to its source,” said the court.
It added: “Unlike Evel Knievel, Duke Caboom is a fictional character in an animated film about toys that come to life.”
Additionally, the court held that the transformative use defence barred K&K’s claim that Disney violated K&K’s right to publicity under Nevada law.
“Even if the character may be generically reminiscent of Knievel to some extent, the district court properly concluded that it is ‘not a literal depiction’, and instead shares general features basic to stuntmen,” said the court.
Circuit Judges Johnnie Rawlinson, Bridget Bade and Daniel Bress wrote the opinion.
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