## Facts

- PAM Media, Inc. produced, and EFM Media Management, Inc. syndicated, *The Rush Limbaugh Show*, a nationally broadcast, commercially successful radio talk show hosted by Rush Limbaugh.
- American Research Corporation (ARC), through its USA Talk Network division, developed syndicated radio programming; Aaron Harber was an ARC principal.
- Defendants created and marketed a talk show titled *After The Rush*, hosted by Harber, designed to present views ideologically opposite to Limbaugh’s and intended to air immediately after Limbaugh’s show.
- Defendants distributed promotional materials (press release, brochure, letters, and a demo tape) that explicitly referenced Limbaugh and *The Rush Limbaugh Show* and emphasized “capturing” the post-Limbaugh audience.
- Plaintiffs did not approve the show, its title, or the promotional references, and alleged defendants were trading on Limbaugh’s goodwill and causing confusion about sponsorship, approval, or affiliation.

## Issues

1. Whether the title *After The Rush* and related promotional references created a likelihood of confusion as to sponsorship, approval, or affiliation in violation of the Lanham Act.
2. Whether the First Amendment protected defendants’ use of “Rush” and references to Limbaugh in the title and marketing of a politically oriented, expressive radio program.
3. Whether defendants’ use of Limbaugh’s name and persona in promoting the program constituted actionable appropriation (or a right-of-publicity-type claim) under Colorado law, and how any such claim is limited by the First Amendment.

## Decision

- Plaintiffs’ motion for summary judgment was denied on the Lanham Act claim.
- Defendants were denied complete summary judgment on the Lanham Act claim; the court held factual questions remained as to whether particular marketing presentations were misleading and confusing.
- The court held the First Amendment substantially limited plaintiffs’ trademark-based and appropriation-type theories and refused to bar use of the expressive title *After The Rush*.
- The court largely rejected the appropriation/right-of-publicity-type claims at summary judgment, concluding the politically oriented use of Limbaugh’s identity was protected speech rather than pure commercial exploitation.

## Legal Principles

- Use of a mark or a public figure’s identity in the title or presentation of an expressive work receives significant First Amendment protection, requiring a confusion analysis sensitive to protected speech.
- A title referencing another’s mark or identity is generally permissible when it has clear relevance to the work’s content and relationship to the referenced subject, and when it is not explicitly misleading as to source, sponsorship, or endorsement.
- Lanham Act liability for expressive works turns on context; even where a title is protected, specific promotional statements or marketing methods may still be actionable if they are materially misleading and likely to confuse.
- Colorado appropriation/privacy principles (and any analogous publicity interest) do not impose liability for use of a public figure’s identity in political commentary and idea-driven programming, absent a primarily commercial, non-expressive exploitation.

## Conclusion

The court treated *After The Rush* as political, expressive programming and held that the First Amendment protected the show’s referential title and much of its use of Rush Limbaugh’s identity, while allowing a narrowed Lanham Act theory to proceed only to the extent plaintiffs could prove specific, context-driven confusion from defendants’ marketing.


PAM Media, Inc. v. Am. Research Corp., 889 F. Supp. 1403 (D. Colo. 1995)