DALLAS COWBOYS CHEERLEADERS, INC.
v.
SCOREBOARD POSTERS, INC.
United States Court of Appeals, Fifth Circuit
600 F.2d 118 (1979)

Clark, Circuit Judge. The Dallas Cowboys Cheerleaders are a group of women who perform as cheerleaders on the sidelines during games played by the Dallas Cowboys, a football team. The women are employed by the Dallas Cowboys Cheerleaders Corporation, a wholly owned subsidiary of the Dallas Cowboys Football Club, Inc. In 1977 five members of the Cowboys Cheerleaders posed for a poster to be distributed commercially. The poster shows the five Cowboys Cheerleaders dressed in their official cheerleading outfits in front of a glittering backdrop, with the words "Dallas Cowboys Cheerleaders" appearing in large script at the bottom of the poster. As of December 1978, over three quarter of a million copies of the poster had been sold at an average retail price of $ 2.50 apiece. The poster is copyrighted.

The Texas Cowgirls are a group of former Dallas Cowboys Cheerleaders. Five members of the Texas Cowgirls posed for a poster mimicking the Cowboys Cheerleaders poster. The five women in the Cowgirls poster wear uniforms nearly identical to the official Cowboys Cheerleaders uniforms, they are positioned in a formation like that of the women in the Cowboys Cheerleaders poster, they are in front of a similar backdrop, and at the bottom of Cowgirls poster there is written in large script: "The Ex-Dallas Cheerleaders." In the Texas Cowgirls version of the poster, however, the halter tops of the cheerleading uniforms are unbuttoned, leaving the women in the poster with exposed breasts. This poster was offered for public sale. Orders had been placed and a magazine featuring photographs of naked women had published a picture of the poster.

The Cowboys Cheerleaders filed suit on December 19, 1978 against the Texas Cowgirls, Scoreboard Posters, Inc., the manufacturer and distributor of the Cowgirls poster ***

After hearing argument from both sides, the district judge indicated to counsel present that he intended to grant the temporary restraining order ***

Those sponsoring the Cowgirls poster argue that in weighing the factors of irreparable harm, comparative injury to the parties, and the public interest, the district court failed to heed their first amendment rights to publish their poster unfettered by prior restraint. First amendment values, however, are not the only interests of constitutional dimension in this litigation. Congress has an affirmative constitutional duty "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." U.S.Const. Art. I. @ 8, Cl. 8. The judgment of the constitution is that free expression is enriched by protecting the creations of authors from exploitation by others, and the Copyright Act is the congressional implementation of that judgment. 17 U.S.C.A. @@ 101 Et seq. *** The first amendment is not a license to trammel on legally recognized rights in intellectual property. *** If the record demonstrated a substantial likelihood that the Cowboys Cheerleaders could have a valid copyright infringement claim against the defendants the district court was well within its discretion in granting the preliminary injunction.

*** Finding no abuse of discretion, the grant of the preliminary injunction is

AFFIRMED.