Under the Rogers test, an expressive work may reference a celebrity “without any overt indication of authorship or endorsement.” See Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989). Examples include a 1986 film called “Ginger and Fred” about two Italian cabaret performers whose act imitates Ginger Rogers and Fred Astaire, or the song “Bette Davis Eyes.” The Rogers test may apply where the reference has some artistic relevance to the work. If the reference has “no artistic relevance to the underlying work whatsoever,” then the Rogers test may not apply. Moroever, the Rogers test does not apply where the reference is used as a trademark. Jack Daniel's Properties, Inc. v. VIP Products LLC, 599 U.S. 140 (2023). 

The Ninth Circuit recently addressed the question of whether the Rogers test applies to “a trademark infringement claim involving an animated television series where the allegedly infringing mark was not used to designate the source or origin of the show.” Hara v. Netflix, Inc., No. 23-3768, __ F.4th __ (9th Cir. July 28, 2025). Given that the use of the plaintiff's image and likeness was “solely to perform some other expressive function” on the Netflix adult animation show, Q-Force, about a group of underappreciated queer spies; the Court held that the answer is yes. 

Lance Hara, professionally known as Vicky Vox (“Vox”), is a “well-known Drag Queen in Hollywood” who regularly hosts drag events in West Hollywood and commonly uses a fan as part of her drag persona. Her image and likeness was featured for ten seconds in episode five of Q-Force, the official teaser for the show, and a still image that Netflix provided to an online LGBT publication. 

     This case presents a quintessential example of when the Rogers test applies to the use of a trademark in an expressive work following Jack Daniel's. Here, Defendants used Vox's image and likeness solely in an expressive manner to lend reality to the setting where part of the series takes place, not to designate Vox as the source or origin of Q-Force. 

Q-Force is a show about LGBT spies, and the 10-second clip involving Vox's image and likeness was set in a West Hollywood bar.

Recreating an animated version of a West Hollywood bar with references to drag queens and cocktails is artistically relevant to the plot and social commentary of Q-Force. The alleged use of Vox's likeness is an artistic choice that supports the show's theme and geographic setting, and as discussed above, grounds the scene in a sense of realism. 

Because the reference has some artistic relevance to the work, an explicit indication or misstatement that Vox was the source of Q-Force would be required under Rogers. Vox alleged that the co-creator of Q-Force had “publicly admitted that every character in Q-Force is based on someone in real life in order to ground the Project in reality and that in making casting decisions he wanted to hire someone actually in the drag community.” But this did not establish that Netflix made an overt claim or expressly misled consumers into thinking that Vox is somehow behind the series. See Brown v. Elec. Arts, Inc., 724 F.3d 1235, 1247 (9th Cir. 2013) (“[A] statement made . . . about all of the likenesses used in the game could not realistically be expected to confuse consumers as to Brown's involvement.”) 

Furthermore, even though Vox's close friends, coworkers, and fans had expressed confusion about Vox's connection to the show, such allegations failed to demonstrate an “explicit indication,” “overt claim,” or “explicit misstatement” by Netflix regarding Q-Force's relationship with Vox. See Brown, 724 F.3d at 1245 (“‘[T]he slight risk that . . . use of a celebrity's [likeness] might implicitly suggest endorsement or sponsorship to some people is outweighed by the danger of restricting artistic expression, and [in the  absence of any explicitly misleading statements] the Lanham Act is not applicable.'” (quoting Rogers, 875 F.2d at 1000)). 

Thus, the Court affirmed the dismissal of Vox's lawsuit under the Rogers test.