Drag or Porn? (+ RuPaul’s Drag Race)

From Barnes v. Scola, decided Thursday by Judge Richard Seeborg (N.D. Cal.):

Selena Scola is an actress, entertainer, and influencer. Scola began performing under the name Lexi Love in 2004 in adult films. Between 2004 and 2010, she starred in over 600 such films. During this time, she also worked as a featured dancer at night clubs across the country and was hired to help promote companies at industry expositions. She appeared at red carpet events, award shows, and conventions and guest-starred on radio talk shows.

In 2009, she became an advocate for safe sex in the adult entertainment industry and began speaking out about conditions under which she would not work on an adult film. Then, in 2010, Scola shifted from acting in adult films. She worked as a consultant on adult films and continued to attend industry events and appeared on radio shows but began expanding her work, again under the name Lexi Love, into independent films, television shows, commercials, video games, music videos, musical recordings and tours, film and podcast production, and other entertainment and influencer roles. Scola also grew and maintained a strong, monetized social media presence. She holds U.S. Trademark Registration No. 7,727,806 for LEXI LOVE in International Class 41, covering talent agency and management services, as well as entertainment performance services.

Cody Barnes is a professional drag performer who alleges she began using the name Lexi Love in 2009. Barnes also performed under the names Alexstacy Love, Lexi DVV Love, and Lexi V. Love—the latter of which she used as recently as 2021. Then in 2025, Barnes’ fame grew with her participation in Season 17 of the popular show RuPaul’s Drag Race. Barnes’ casting was announced in December 2024, and the season aired between January and April 2025. Barnes, as Lexi Love, appeared in every episode. WOW produced Season 17, and Paramount aired it on MTV.

In December 2024, with the announcement of Barnes’ participation in RuPaul’s Drag Race, Scola learned of Barnes’ use of the name and contacted Paramount’s MTV and Barnes to inform them of her trademark rights. Yet, Barnes’ use of the name continued. In August 2025, Scola sent cease and desist letters to Paramount, WOW, and Barnes. Barnes again continued to use the name and encouraged her fans to do the same, and Paramount and WOW continued to post content featuring Barnes as Lexi Love. Throughout this time, Scola sent takedown requests to social media platforms and third parties regarding Barnes’ use of the LEXI LOVE mark.

Barnes’s fame has diluted Scola’s online presence. Scola has been tagged repeatedly on social media by users intending to tag Barnes, searches for Lexi Love return content about Barnes, and, as a result of Barnes’ fame, Scola has lost business opportunities. Scola has sent numerous takedown requests regarding Barnes’ content and accounts using the Lexi Love name.

Litigation ensued, Scola claimed that Barnes infringed her trademark, and the court allowed the claim to go forward:

The motion to dismiss by Paramount and WOW turns entirely on whether Scola’s claims for contributory trademark infringement and unfair competition are foreclosed by the first amendment protection afforded under the Rogers test. The Rogers test was first articulated by the Second Circuit in Rogers v. Grimaldi (2d Cir. 1989) and seeks to balance trademark protection with free expression.

It is possible for “expressive works [to] reference a celebrity [or other trademark] ‘without any overt indication of authorship or endorsement.'” A reference to a mark may serve as a “prop or background element.” For example, the song titled “Bette Davis Eyes” references Bette Davis, but “the celebrity is not overtly identified as the source or sponsor of the work.” In such cases, when the challenged mark is used “‘solely to perform some other expressive function,'” and “‘not to designate a work’s source,'” the First Amendment protects against Lanham Act liability—in other words, the Rogers test must be applied. On the other hand, “when a challenged trademark use functions as source-identifying,” there is no conflict between first amendment and Lanham Act rights, and “the likelihood-of-confusion inquiry does enough work to account for the interest in free expression.” “Nor does that result change because the use of a mark has other expressive content.”

In Jack Daniel’s Properties, Inc. v. VIP Products LLC (2023), the Supreme Court considered whether Rogers protection should apply in a suit for trademark infringement brought by Jack Daniel’s against a dog-toy manufacturer. The manufacturer sold a dog toy that was shaped like a Jack Daniel’s whiskey bottle and had the phrases “Bad Spaniels” where “Jack Daniel’s” normally appears and “Old No. 2 on Your Tennessee Carpet” in the place of “Old No. 7 Brand Tennessee Sour Mash Whiskey.” The dog manufacturer conceded it “use[d] its Bad Spaniels trademark and trade dress as source identifiers of its dog toy.” Accordingly, even though the mark was also used expressively, namely as parody, Rogers protection did not apply because the “‘mark [was being] used as a mark'” “to identify and distinguish [the manufacturer’s] goods.”

In Hara v. Netflix Inc. (9th Cir. 2025), the Ninth Circuit considered whether use of a drag queen’s likeness in a cartoon show about queer superspies warranted application of the Rogers test. The Ninth Circuit held that the Rogers test should be applied “because the alleged ten-second use of [the celebrity’s] image and likeness in one episode … and the related teaser and still image in no way suggests or identifies [the celebrity] as a source or origin of the show.” The referential character appeared “as an unspeaking background character whose sole role [wa]s to perform a fan ‘thworp’ as a punchline to another character’s joke” in a bar scene that “is incidental to the overall theme of the episode and series.” In other words, the show used the celebrity’s likeness “no different[ly] than the use of football legend Jim Brown’s likeness in the Madden NFL video game”: it was “a prop or background element,” “help[ing] ground the scene of a West Hollywood gay bar in realism.” The celebrity failed to “allege that the use of her likeness in [the show], the official teaser, or the still image indicated or even suggested that she was the source or origin of the series.”. In short, her “likeness was [not] used by [d]efendants as a mark.”

Here, use of the mark LEXI LOVE, to which Paramount and WOW are alleged to contribute, is source-identifying. Paramount and WOW insist otherwise, explaining that “Lexi Love” is “not [used] to identify the source of the series itself.” Yet, they concede that they display “Lexi Love” “in connection with the identity of a cast member,” “as the drag name of a … contestant on the television show that they produce and promote.” … Paramount and WOW “produc[e], air[ ], and stream[ ] Season 17 of Drag Race, and post[ ] content identifying Barnes as Lexi Love[.]” … In essence, they are saying, tune in to see Lexi Love! This usage is not merely “a prop or background element,” “help[ing to] ground the scene of a [drag race] in realism.” Rather, Paramount and WOW use “Lexi Love” to: (1) identify a real performing artist offering entertainment services; (2) promote that artist across national television, paid streaming platforms, and social media; and (3) commercially exploit that identity for their and Barnes’ financial benefit.

In short, “Lexi Love” is used as a mark. Accordingly, since the alleged conduct involves use of a mark as a mark, Rogers protection does not apply, and Paramount and WOW’s argument to the contrary fails. {Paramount and WOW argue that the question is whether their use of the mark is source-identifying, but a claim for contributory trademark infringement is based on knowledge of and contribution to another’s infringement. So, it is also sufficient if they have contributed to Barnes’ source-identifying use of the mark.}

Paramount and WOW rest their entire motion on the Rogers exception. For the foregoing reasons, it does not apply here….

Note, however, that the court had earlier denied Scola’s motion for a preliminary injunction, reasoning:

Both Plaintiff Cody Barnes and Counterclaimant Selena Scola are entertainers who have performed for years using the same name, Lexi Love. Scola brings the present motion for a preliminary injunction seeking to enjoin Barnes and [WOW and Paramount] from using that name in connection with her professional activities.

Preliminary injunctive relief is an extraordinary remedy. While Scola’s trademark claims warrant serious concern, they hinge on a factual record rife with questions about whose use of the name expanded into which channels first. Injunctive relief cannot issue on such a record. Accordingly, the motion is denied.