UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

CASE NO: 9:20-cv-80847-RJS 

THE GEO GROUP, INC. and 

GEO TRANSPORT, INC. 

 

Plaintiffs, 

v. 

NETFLIX, INC., 

Defendant. 

______________________________________________/ 

DEFENDANT NETFLIX, INC.’S REPLY IN FURTHER 

SUPPORT OF ITS MOTION TO DISMISS PLAINTIFFS’ COMPLAINT

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Defendant Netflix, Inc. (“Netflix”) respectfully submits this reply in further support of its 

motion to dismiss the Complaint (the “Motion”). (D.E. 27). 

PRELIMINARY STATEMENT 

This lawsuit is about twenty-eight (28) seconds of video footage. A review of that footage 

and the pertinent episodes of Netflix’s fictional series, Messiah, is all this Court needs to dispense 

with Plaintiffs’ claims. Plaintiffs, however, seek to make this case about everything other than the 

actual video footage: they advocate for new law (such as a nonexistent third prong to Rogers test, 

which is controlling precedent); attempt to distract with concocted conspiracy theories (a supposed 

intent to “destroy” their business through the imperceptible display of their logo); and speculate as 

to Netflix’s supposed “motivations” (which are not only unfounded, but legally 

irrelevant). Plaintiffs’ Opposition attempts to divorce Plaintiffs’ claim from not just Messiah’s 

actual episodes but, incredibly, from the manipulated, enlarged, cropped and isolated screen shots 

used in their Complaint. The divide between the actual footage, Plaintiffs’ characterization of 

these episodes and controlling precedent cannot be any wider. 

Once the Court views Messiah, it becomes apparent that the fictional series’ use of the 

Plaintiffs’ marks easily satisfies the “purposefully low” artistic relevance prong of the Rogers

test. This review confirms that the use is not “explicitly misleading,” as Netflix has not made any 

affirmative statement to mislead “consumers” into believing that Plaintiffs, operators of detention 

centers and a related transportation service, have sponsored Messiah or tried their hand at 

producing a fictional television series. The fleeting use of Plaintiffs’ marks in the context of 

Messiah is protected by the First Amendment, mandating dismissal of Plaintiffs’ trademark 

infringement-related claims. 

A review of Messiah also makes clear that Messiah does not defame either of the 

Plaintiffs. There is, for example, no statement susceptible to a defamatory interpretation 

concerning GEO Transport in the single, two-second scene in which a bus bearing its name appears 

among wreckage caused by a fictional tornado. And no reasonable viewer would perceive that the 

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fleeting moments in which GEO Group’s logos appears (together with other third-party logos), in 

the background of scenes, reasonably convey any false statement of fact about GEO Group. 

I. PLAINTIFFS’ TRADEMARK CLAIMS SHOULD BE DISMISSED 

A. Plaintiffs Ignore Controlling Precedent, and Seek to 

Rewrite the Well-Established Rogers Test by Adding a Third Element. 

Where, as here, a plaintiff asserts claims based on the use of a trademark in an expressive 

work such as Messiah, the Eleventh Circuit has adopted the so-called Rogers test, based on the 

Second Circuit’s seminal decision in Rogers v. Grimaldi. 875 F.2d 994, 999 (2d Cir. 1989); see 

also University of Alabama Bd. of Trustees v. New Life Art, Inc., 683 F.3d 1266 (11th Cir. 2012). 

Plaintiffs concede, as they must, that the Rogers test governs their Lanham Act claims, but 

argue, without any legal support, that there should be a “defamation exception” to Rogers. 

Specifically, Plaintiffs advocate that the creator of the expressive work should be stripped of its 

First Amendment rights if the trademark owner disapproves of the manner in which its trademark 

is depicted. (D.E. 38 at 8-9). If this were the law (and it is decidedly not), a plaintiff need only 

express displeasure or utter the word, “defamatory” and their trademark claims would survive the 

Rogers test and undermine the important First Amendment values that Rogers protects. Univ. of 

Alabama, 683 F.3d at 1277 ([T]he Lanham Act should be read narrowly to avoid impinging on 

speech protected by the First Amendment.”) (citation omitted). By limiting the exception to only 

those uses that the trademark owner agreed were in a flattering or “realistic” light, Plaintiffs’ 

proposed test would not only swallow the rule, but undercut the very purpose of the First 

Amendment: to allot for artistic expression, flattering or otherwise. 

There is no support for Plaintiff’s argument, and similar arguments have been repeatedly 

rejected, including, for example, in: 

• Louis Vuitton Malletier S.A. v. Warner Bros. Entm't Inc., 868 F. Supp. 2d 172, 175–76 

(S.D.N.Y. 2012) (relying on Rogers in dismissing plaintiff’s claim that the alleged use 

of knockoff bag in the defendant’s film “tarnish[es] the LVM Marks,”)); 

• Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894, 902-03 (9th Cir. 2002) (dismissing 

plaintiff’s claim that the song Barbie Girl “tarnishes the [Barbie] mark because the 

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song is inappropriate for young girls,” applying Rogers); 

• Roxbury Entm't v. Penthouse Media Grp., Inc., 669 F. Supp. 2d 1170, 1176 (C.D. Cal. 

2009) (relying on Rogers in dismissing plaintiff’s objection to use of its trademark in 

pornographic film). 

Indeed, in Rogers, Ginger Rogers brought both trademark and defamation claims, and both 

were dismissed. Rogers, 875 F.2d at 1005. There is no “defamation exception” to the Rogers test. 

The Court should follow the Eleventh Circuit’s clear precedent, and reject Plaintiffs’ attempt to 

make new law. 

B. Netflix Satisfies the First Prong of the Rogers Test, as the 

Uses of the GEO Group and GEO Transport Trademarks 

Easily Clear the “Purposefully Low” Bar of Artistic Relevance. 

“The threshold for ‘artistic relevance’ is purposely low and will be satisfied unless the use 

‘has no artistic relevance to the underlying work whatsoever.’” Louis Vuitton Malletier, S.A., 868 

at 178 (quoting Rogers, 875 F.2d at 999) (emphasis in original). A defendant need only 

demonstrate that the mark’s relevance to the artistic work is “above zero.” Despite this 

exceedingly low threshold, Plaintiffs argue that use of a trademark cannot satisfy the “above zero” 

threshold if the expressive work paints an “inaccurate and offensive picture of the trademark’s 

associations.” (D.E. 38 at 9). Once again, this is not the law, and Courts have repeatedly rejected 

substantively similar arguments. 

In Dillinger, LLC v. Electronic Arts Inc., for example, the plaintiff held the trademark rights 

in John Dillinger, the “legendary gentleman-bandit,” famously associated with submachine guns 

known as “Tommy Guns.” See No. 1:09-CV-1236-JMS-DKL, 2011 WL 2457678, at *2 (S.D. Ind. 

June 16, 2011). Electronic Arts published multiple videogames adapted from Mario Puzo’s 

famous Godfather novels in which players could use “Dillinger Tommy Guns” to conduct an array 

of criminal activities. Id. at 3. The plaintiff complained that the use of its mark was inaccurate and 

thus could not satisfy the artistic relevance prong of the Rogers test, as Dillinger does not appear 

in the Godfather novels or movies, and was not even alive during the time period the Godfather is 

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set. The court disagreed, finding that “the ‘mental imagery’ associated with the Dillinger name 

has more than zero relevance,” to a videogame that “enables players to act like members of the 

mafia and spray Tommy Guns.” Id. at 5-6 (emphasis added). Likewise, in Roxbury Entertainment, 

the plaintiff argued that the use of its “Route 66” mark was offensive and not relevant to a film 

comprised “primarily [of] graphic sex scenes,” some of which occurred at a roadside motel. See 

669 F. Supp. 2d at 1173. The district court nonetheless held the artistic relevance prong to be 

satisfied, because there was “at least some relationship between the mental imagery associated 

with the term ‘Route 66,’ e.g., road trips, cross-country travel, and the content of,” the 

pornographic movie. Id. at 1176; Mil-Spec Monkey, Inc. v. Activision Blizzard, Inc., 74 F. Supp. 

3d 1134, 1142–43 (N.D. Cal. 2014) (“[Plaintiff] invokes no authority, nor is there any, for the 

proposition that use of a mark must sufficiently mimic reality to fall within the First Amendment’s 

safe haven.”). 

The use of the GEO Group and GEO Transport logos in Messiah is artistically relevant to 

enhancing the “look and feel” ofscenes set at a fictional immigration detention center in the present 

day, serving the same purpose as costumes featuring the contemporary logos of the CIA or the 

Department of Homeland Security, which appear in some of the same scenes. See E.S.S. Entm’t 

2000, Inc. v. Rock Star Videos, Inc., 547 F.3d 1095, 1100 (9th Cir. 2008) (cartoonish recreation of 

plaintiff’s “Pig Pen” strip club was relevant to videogame developer’s artistic goal of recreating 

“look and feel” of Los Angeles neighborhood). Whether or not the fictional facility depicted in 

Messiah is an exact or flattering replica of the facilities GEO Group operates is beside the point; 

all that the artistic relevance prong requires is that there be some relationship, however tenuous, 

“between the mental imagery associated with” GEO Group’s and GEO Transport’s logos and 

immigration detention facilities. Roxbury, 669 F. Supp. 2d at 1176. That prong of the Rogers test 

is easily met here. 

Finally, contrary to Plaintiffs suggestion, there is no need for the Court to probe whether 

Netflix’s “motive” in including Plaintiffs’ trademarks in Messiah was to enhance the work’s 

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“artistic relevance.” The use is either “artistically relevant” or it is not. Motive is irrelevant. See 

Dillinger, 2011 WL 2457678, at *6 (“[I]t is not the role of the Court to determine how meaningful 

the relationship between a trademark and the content of a literary work must be; consistent 

with Rogers, any connection whatsoever is enough...”); VIRAG, S.R.L. v. Sony Computer Entm’t 

Am. LLC, No. 3:15-CV-01729-LB, 2015 WL 5000102, at *12 (N.D. Cal. Aug. 21, 2015), aff'd, 699 

F. App’x 667 (9th Cir. 2017) (“Under the first prong of the Rogers test, the court does not need to 

determine exactly how artistically relevant the VIRAG® mark is to the games; it merely has to be 

able to conclude that the artistic relevance is ‘above zero’”) (citation omitted). 

C. Netflix Satisfies the Second Prong of the Rogers Test, as It Did 

Not Mislead the Consumer as to the Source or Content of Messiah. 

The “explicitly misleading” prong of the Rogers test focuses on whether the defendant took 

any action, separate and apart from using the trademark in the expressive work, to mislead 

consumers as to who was responsible for creating the work, E.S.S. Entm't 2000, 547 F.3d at 1100, 

not as Plaintiffs claim, whether the trademark is visible in the expressive work. (D.E. 38 at 12). 

Indeed, to be explicitly misleading, the defendant’s work must make an affirmative statement as 

to the plaintiff’s sponsorship or endorsement. See Univ. of Alabama, 683 F.3d at 1279 (holding 

painter did not explicitly mislead because “there is no evidence that Moore ever marketed an 

unlicensed item as ‘endorsed’ or ‘sponsored’ by the University.”); Vallejo v. Narcos Prods., LLC, 

No. 1:18-CV-23462-KMM, 2019 WL 5884513, at *4 (S.D. Fla. May 24, 2019) (holding Netflix 

did not explicitly mislead as to the source of its television show Narcos because “there are no 

allegations that Defendants attributed or otherwise suggested that Plaintiff was a producer of the 

show Narcos.”). 

 Plaintiffs do not, and cannot, allege that Netflix made any affirmative statements or took 

any action to “explicitly mislead” viewers into believing that GEO Group or GEO Transport 

sponsored or participated in Messiah. Netflix indisputably did not market Messiah as “endorsed” 

or “sponsored” by Plaintiffs, nor did it make any statement that Messiah was affiliated with 

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Plaintiffs in any way. Rather, Messiah opens with the Netflix red “N” logo and a title card saying 

“A Netflix Original Series” at the beginning of each episode. 

The fleeting and partial images of Plaintiffs’ trademarks for a combined total of twentyeight seconds, in two of the series’ ten episodes is insufficient, as a matter of law, to “explicitly 

mislead” consumers into thinking that Plaintiffs, who are in the business of operating detention 

facilities and detainee transports, branched out into the production of a fictional thriller television 

series. See Gordon v. Drape Creative, Inc., 909 F.3d 257, 270 (9th Cir. 2018) (“No one would 

think that a song . . . titled ‘Barbie’ was created by Mattel . . . [n]or would anyone think a company 

that owns one strip club in East Los Angeles also produces a technologically sophisticated video 

game.”) (internal citations and quotations omitted). Netflix easily meets the Rodgers test. 

D. Plaintiffs Concede That Their State Law Claims Rise and Fall with the Rogers Test.

Plaintiffs concede that the dismissal of their Lanham Act claims result in the dismissal of 

their Florida state law claims for trademark infringement, unfair competition, and violation of the 

Florida Deceptive and Unfair Trade Practices Act. See Suntree Techs., Inc. v. Ecosense Int’l, Inc., 

693 F.3d 1338, 1345 (11th Cir. 2012). As Plaintiffs’ trademark claims fail as a matter of law, their 

state law claims should also be dismissed. See Vallejo, 2019 WL 5884513, at *5. 

II. PLAINTIFFS’ DEFAMATION CLAIMS SHOULD BE DISMISSED 

A. GEO Transport’s and GEO Group’s Claims Must Be Evaluated Separately. 

Rule 8 requires each plaintiff to separately and independently articulate the facts and 

circumstances giving rise to its individual causes of action. The fact that two plaintiffs may have 

a corporate affiliation does not obviate the need for each to articulate an independent cause of 

action. In re Zinc Antitrust Litig., 155 F. Supp. 3d 337, 384 (S.D.N.Y. 2016) (“Nor is it sufficient 

for plaintiffs to simply state in conclusory terms that separate legal entities are ‘sometimes 

collectively referred to’ by a shared generic name.”); see also Lane v. Capital Acquisitions & Mgmt. 

Co., No. 04-60602 CIV, 2006 WL 4590705, at *5 (S.D. Fla. Apr. 14, 2006), aff'd sub nom. Lane 

v. XYZ Venture Partners, L.L.C., 322 F. App’x 675 (11th Cir. 2009) (“[T]he Complaint fails to 

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differentiate among the defendants . . . By lumping all the defendants together . . . the [] Complaint 

fails to satisfy the minimum standard of Rule 8.”). 

GEO Transport and GEO Group are distinct corporate entities with distinct businesses. 

Any defamation claim must therefore relate to that specific company, and not to the business of 

the other entity. And while neither GEO entity states a claim for defamation, separating GEO 

Transport’s defamation claim from GEO Group’s claim further highlights its frivolity. 

B. GEO Transport’s Defamation Claim is Frivolous. 

To state a claim for defamation, GEO Transport must allege that Messiah makes a false 

statement of fact about GEO Transport that is susceptible to a defamatory interpretation. But there 

is no statement about GEO Transport whatsoever – much less a false statement of fact – in Messiah. 

GEO Transport appears once in Messiah for a total of two seconds in episode three, in a scene 

depicting the devastating aftermath of a fictional tornado where the only structure left standing is 

a church at the center of the story. To highlight the church’s lone survival, the camera pans over 

the widespread destruction, which includes all types of destroyed vehicles, including a bus that 

bears GEO Transport’s logo. The only “statement” conceivably conveyed by this two-second shot 

is that GEO Transport’s busses, like every single other vehicle in this town, are not tornado-proof. 

GEO Transport knows full well that this glimpse of their bus (if one even catches it) is not 

a defamatory statement, and so it manufactures an after-the-fact theory: if you stitch together the 

tornado-damaged bus with a scene in a later episode which then introduces the detention facilities, 

and there is a parking lot in that later episode where GEO Transport vehicles “are authorized to 

park,”1 those images somehow combine to form a defamatory statement that subjects it to “hatred, 

distrust, [or] ridicule.” (Compl. ¶ 52). What the exact statement is remains a mystery. Any 

statement that GEO Transport’s buses are used to transport detained migrants is neither false nor 

 

1

 Plaintiffs argue GEO Transport is depicted when the protagonist is brought to the detention 

facility (notwithstanding that the al-Masih character is transported to that facility in a van 

prominently marked with the Department of Homeland Security logo, not GEO Transport’s logo). 

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reasonably susceptible to a defamatory meaning. 

A review of the pertinent scene within the context of Messiah dispels any contention that 

a defamatory statement has been made about GEO Transport.2 See Spilfogel v. Fox Broad. Co., 

No. 09-CV-80813-RYSKAMP/VITUNAC, 2010 WL 11504189, at *4 (S.D. Fla. May 4, 

2010), aff'd, 433 F. App’x 724 (11th Cir. 2011) (“After viewing the episode, there is no indication 

that Ms. Spilfogel is being treated as, or could be viewed as, a criminal.”); Folta v. New York Times 

Co., No. 1:17CV246-MW/GRJ, 2019 WL 1486776, at *10 (N.D. Fla. Feb. 27, 2019) 

(“[P]ublications should be evaluated not by extremes, but as the common mind would naturally 

understand [them]”) (internal citations and quotations omitted). GEO Transport’s attempt to pad 

the anemic claims of GEO Group by jumping on the defamation bandwagon (which too would not 

survive a tornado) expose the frivolousness of its claims. GEO Transport’s claims should be 

dismissed. 

C. Episode Four of Messiah Is Not “Of And Concerning” GEO Group 

To satisfy the “of and concerning” prong of a defamation claim, a plaintiff must 

demonstrate that the alleged defamatory statement is about the plaintiff. That the plaintiff is 

mentioned or, in this case, that the GEO Group’ logo may be visible, is not sufficient. The question 

of whether a plaintiff is “identifiable” is a separate and distinct issue from whether the substance 

of the publication constitutes a defamatory assertion “of and concerning” the plaintiff. Cf. McIver 

v. Tallahassee Democrat, Inc., 489 So. 2d 793, 794 (Fla. DCA 1986) (holding even though 

Southeastern Realty was expressly named in newspaper article, “the entire substance of the 

publication about the alleged incident was the presumed unlawful action by the individual McIver,” 

and therefore there was no defamatory statement “of and concerning” Southeastern Realty). 

 

2

 Knowing this, GEO Transport resorts to the hail-Mary of “leaving it to the trier of fact.” Whether 

a statement is susceptible to defamatory interpretation is, however, a question of law for the court 

which can be determined at the motion to dismiss stage. Turner v. Wells, 879 F.3d 1254, 1262–

63 (11th Cir. 2018) (citation omitted).

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GEO Group would have the Court believe that episode four of Messiah, which depicts 

multiple interlocking government agencies scrutinizing the al-Masih character’s intentions and 

motivations, and makes no mention of GEO Group, is reasonably viewed by an average viewer as 

making a statement “of and concerning” GEO Group. As is clear from the relevant episodes of 

Messiah (episodes three and four), if there is a statement made, it is about agencies of the United 

States government: Al-Masih is initially arrested by a DHS officer in episode three (DVD Ex., 

Disc 5, 25:32-25:44); in the next episode he is transported to the detention facility in a van 

prominently marked with the DHS logo (DVD Ex., Disc 5, 41:01-41:07); the DHS officer appears 

to have unfettered access to the immigration detention facility in episode four, for example 

observing al-Masih and other detained immigrants in the main holding area without a GEO Group 

guard in sight (DVD Ex., Disc 5, 43:13-43:33); he even has sufficient access to the interrogation 

rooms to plant an audio device. (DVD Ex., Disc 5, 54:17-54:38). 

While GEO Group asserts in its Opposition that “no reasonable viewer,” of Messiah would 

think that a Department of Justice attorney had decision-making power over the conditions in 

which immigrants were detained, (D.E. 38 at 7), a DOJ attorney enters the detention facility’s 

security control room unannounced in episode four, uses the monitors to observe al-Masih while 

in custody (DVD Ex., Disc 5, 1:11:24-1:11:53) and it is the DOJ attorney who is prosecuting alMasih. The focus of the episode is whether to prosecute or release al-Masih; there is no focus or 

discussion about the “conditions” at the facility and certainly no discussion concerning GEO 

Group. The presence of a GEO patch on the security guard’s arm in that scene (if one even notices 

it) is incidental to creating a sense of contemporary time and place; it is no more defamatory 

towards GEO Group than towards Dunkin Donuts (whose logo is visible on the coffee cup the 

DOJ attorney hands to the security guard). 

A review of the series, and episode four in particular, in context within the broader series, 

reveals that Messiah is not attempting to make any specific statement “of and concerning,” GEO 

Group. Rather, the television series explores the nature of religious belief, and how governments 

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(the United States government in particular) react to religious movements. Messiah is not “about” 

GEO Group any more than it is “about” the General Motors vehicles used to transport al-Masih to 

the facility, or “about” the cell phones on which social media is showcased, and on that basis, its 

defamation claim should be dismissed. 

CONCLUSION 

For the foregoing reasons, Netflix respectfully requests that this Court enter an order 

dismissing Plaintiffs’ complaint in its entirety, with prejudice, and provide such other and further 

relief as the Court deems just and proper. 

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Dated: October 7, 2020 

PRYOR CASHMAN LLP 

Attorneys for Netflix, Inc. 

Ilene S. Farkas (admitted pro hac vice) 

James G. Sammataro 

Michael B. Adelman (admitted pro hac vice) 

201 South Biscayne Boulevard, Suite 2700 

Miami, Florida 33131 

Telephone: (786) 582-3011 

Facsimile: (786) 582-3004 

s/ James G. Sammataro

 Florida Bar No. 520292

CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that on October 7, 2020, I electronically filed the foregoing 

document with the Clerk of the Court using the CM/ECF system, which will send Notices of 

Electronic Filing to all counsel of record. 

s/ James G. Sammataro

James G. Sammataro 

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