In Depth

District court dismisses all claims of hip-hop dancer Honey Rockwell, who alleged that films Honey and Honey 2 violated her privacy rights and trademark rights, holding that some claims were barred by statute of limitations; that plaintiff did not allege common-law trademark in name “Honey” based on her allegations as to her rights in her full name, Honey Rockwell; and that Honey films were protected by First Amendment.

Plaintiff Ereina “Honey Rockwell” Valencia is a hip-hop dancer and dance teacher who has performed under the stage name Honey Rockwell since 1994. Plaintiff is a native of the Bronx and of Hispanic descent, and has performed and taught dance at various community dance centers and theaters in the Bronx.

In 2003, defendants Universal City Studios LLC and Marc Platt Productions released the film Honey, which chronicles the dreams and struggles of Honey Daniels, a native of the Bronx of Hispanic descent who performs and teaches hip-hop dance in the Bronx. In 2011, defendants released the film Honey 2, a sequel in which a hip-hop dancer inspired by Honey Daniels achieves success.

Plaintiff alleged that defendants appropriated her name, picture, likeness and identity through their release of the Honey films, pointing to the following facts: (1) plaintiff assumed the stage name Honey in 1994; (2) both plaintiff and Honey Daniels are Hispanic women; (3) both teach hip-hop dance in the Bronx and appear in hip-hop music videos; and (4) both were affiliated with dance studios Bronx Dance Theatre and Hunts Point. Plaintiff also alleged that a producer of the film was notified of Honey Daniels’ similarity to plaintiff. Finally, plaintiff alleged that she had been approached and identified as the dancer depicted in Honey and was contacted to appear at a movie release party as “the real [H]oney.”

Plaintiff filed suit and asserted claims for (1) commercial appropriation; (2) intrusion upon seclusion; (3) deceptive trade practices under O.C.G.A. § 10-1-372; (4) false advertising and unfair competition under 15 U.S.C. § 1125(a) and O.C.G.A. § 10-1-390; (5) fraud and unfair competition under O.C.G.A. § 23-2-55; (6) trademark dilution in violation of O.C.G.A. § 10-1-451(b); and (7) unjust enrichment. Defendants moved to dismiss the complaint in its entirety.

First, the court considered the statute of limitations and held that the privacy tort claims should have been brought within two years of the release of the Honey films. The statutory claims were subject to a four-year statute of limitations and therefore timely to the extent they were based on Honey 2, although they were dismissed on other grounds as discussed below. Second, the court dismissed the unjust enrichment claim because unjust enrichment was asserted as a separate tort claim and not as an alternative theory of recovery for a failed contract.

With respect to plaintiff’s Lanham Act and Georgia trademark law claims, the court observed that plaintiff asserted trademark rights in the mark “Honey” in association with various goods and services related to the dance field but did not allege that she registered the trademark. Therefore, she would have to allege sufficient facts that she had established common-law trademark rights in the “Honey” mark. Only a sufficiently distinctive common-law mark can give rise to a cause of action; names are descriptive marks, which are entitled to trademark protection only if they have acquired secondary meaning. The court held that rights in the composite name “Honey Rockwell” did not confer rights in the single name “Honey.” Therefore, plaintiff failed to state a claim under the Lanham Act or Georgia trademark law upon which relief could be granted.

Finally, the court considered plaintiff’s claim under Georgia’s Uniform Deceptive Trade Practices Act. The court ultimately dismissed that claim because the Honey films were works of artistic expression, protected by the First Amendment. Balancing the First Amendment and the Lanham Act, the court held that the titles Honey and Honey 2 were artistically relevant to the protagonist Honey Daniels’ first name, and that the alleged facts were not sufficient to allow the court to conclude that the titles could explicitly mislead as to the source of such work.