In the

United States Court of Appeals

For the Seventh Circuit

No. 12-2928

EASTLAND MUSIC GROUP, LLC, and

RAYNARLDO WHITTY,

Plaintiffs-Appellants,

v.

LIONSGATE ENTERTAINMENT, INC.;

SUMMIT ENTERTAINMENT, LLC; and

MANDATE PICTURES, LLC,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 11 C 8224—George W. Lindberg, Judge.

ARGUED DECEMBER 6, 2012—DECIDED FEBRUARY 21, 2013

Before EASTERBROOK, Chief Judge, and FLAUM and

ROVNER, Circuit Judges.

EASTERBROOK, Chief Judge. Eastland Music Group is

the proprietor of the rap duo Phifty-50, which, according

to its web site www.phifty-50.com, has to its credit one
2 No. 12-2928

album (2003) and a T-shirt. Eastland Music has registered “PHIFTY-50” as a trademark. It also claims a

trademark in “50/50” and contends that Lionsgate Entertainment and Summit Entertainment infringed its

rights by using “50/50” as the title of a motion picture

that opened in 2011.

The district court dismissed the complaint under

Fed. R. Civ. P. 12(b)(6), ruling the movie’s title descriptive

because the film concerns a 50% chance of the main

character surviving cancer. 2012 U.S. Dist. LEXIS 100310

(N.D. Ill. July 19, 2012). Eastland Music protests that this

is a defense, not an element of the claim, and that

because the movie is not part of the complaint the

motion to dismiss should have been handled as one

for summary judgment. See Rule 12(d). Eastland Music

tells us that, had the complaint survived a motion to

dismiss, it would have served extensive discovery

requests, and it seems confident that defendants would

have settled rather than borne the expense of compliance.

Counsel was surprised when reminded, at oral argument, that a motion for summary judgment can

precede discovery (see Rule 56(b), allowing a motion to

be filed “at any time”), leaving the adverse party with

an obligation to show a need for discovery under

Rule 56(d). See Peters v. West, 692 F.3d 629 (7th Cir. 2012)

(resolving a copyright suit in advance of discovery).

Whether a document to which a complaint refers (here,

the movie) is treated as part of the complaint for the

purpose of Rule 12(d) has been a difficult question, see

Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687,
No. 12-2928 3

690–91 (7th Cir. 2012), but one we need not tackle. Nor

need we decide whether to follow Rogers v. Grimaldi, 875

F.2d 994, 999 (2d Cir. 1989), under which the title of

an artistic work can infringe a trademark only if it is

devoid of artistic significance or explicitly misleading

about the work’s source. Rogers treated that doctrine as

an application of the first amendment rather than the

Lanham Act, and courts should avoid unnecessary constitutional adjudication.

It is unnecessary to consider possible constitutional

defenses to trademark enforcement, just as it is unnecessary to decide whether the district court should have

converted the motion to one for summary judgment,

because this complaint fails at the threshold: it does not

allege that the use of “50/50” as a title has caused any

confusion about the film’s source—and any such allegation would be too implausible to support costly litigation. See Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atlantic

Corp. v. Twombly, 550 U.S. 544 (2007). At oral argument,

plaintiffs’ counsel conceded that not a single person

has ever contacted Eastland or its web site to seek a

copy of the film or complain about the film’s contents or

quality. Nor does the complaint allege that any potential

customer has turned to Lionsgate or Summit in quest of

the rap duo’s products. Counsel for plaintiffs also told

us that no survey has been done.

If the accused film bore the title “Phifty-50”, allegations

of confusion or secondary meaning could be omitted

from the complaint. Eastland Music’s registered mark

has become incontestable, 15 U.S.C. §1065, though incon-
4 No. 12-2928

testable marks are subject to certain defenses. 15 U.S.C.

§1115(b). The title “50/50” differs from the mark “Phifty50”, however; only the latter is registered—and the

principal reason it was registrable is that it is a made-up

homophone of a familiar phrase, which in ordinary

usage is suggestive or descriptive. It takes a powerful

showing of association between such an expression and

a particular producer of goods to establish a trademark claim—and Eastland Music has not attempted

such a showing.

The phrase 50/50 or a sound-alike variant (50-50, fiftyfifty, fifty/fifty) has been in use as the title of intellectual

property for a long time. Wikipedia lists eight films

with that title, opening in 1916, 1925, 1972, 1981, 1982,

1992, 2004, and 2011. See http://en.wikipedia.org/wiki/

50/50. Six of these movies predate Eastland Music’s use.

The 1982 film is by and about a rock band. Wikipedia

lists three TV shows with that title, plus an episode of a

fourth show. It also lists three songs whose titles contain

the phrase 50/50. One of these is Frank Zappa’s 1973 song

“50/50”. Then there’s “50/50 Luv” released in 1995 by

the rap group B.G. Knocc Out & Dresta. And Wikipedia’s

list is not comprehensive, for it omits anything by the

rap duo Phifty-50; doubtless other examples also are

missing. If there is any prospect of intellectual property

in the phrase 50/50, Eastland Music is a very junior

user and in no position to complain about the 2011 film.

Phifty-50 entered a crowded field, and its rights are

correspondingly weak and narrow. See 2 McCarthy on

Trademarks and Unfair Competition §§ 11.85–.87 (4th

ed. 2012).
No. 12-2928 5

The title of a work of intellectual property can infringe

another author’s mark only if the title falsely implies

that the latter author is its origin. Dastar Corp. v. Twentieth

Century Fox Film Corp., 539 U.S. 23 (2003). The titles of

Truman Capote’s novella Breakfast at Tiffany’s, and the

movie of the same name, do not infringe the rights

of Tiffany & Co. because no reasonable reader or

moviegoer thinks that the jeweler is the source of the

book or the movie. (We do not consider the possibility of relief under dilution statutes.) Dastar held that

trademark law cannot be used to obtain rights over

the content of an artistic work; that would amount to

an indefinite extension of a copyright. Titles of songs

and movies cannot be copyrighted (see Peters, 629 F.3d

at 635–36; 37 C.F.R. §202.1(a)); Dastar tells us not to use

trademark law to achieve what copyright law forbids.

Only a confusion about origin supports a trademark

claim, and “origin” for this purpose means the “producer

of the tangible product sold in the marketplace.” 539 U.S.

at 31. Eastland Music’s complaint does not (and could

not plausibly) allege that consumers treat it as the

producer or source of the film 50/50, or treat Lionsgate

as the producer of the 2003 rap album.

AFFIRMED

2-21-13