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And now, for more legal oddities, including the sealed deposition of a notorious provocateur…

Of all the indignities that David Zaslav is suffering these days—splitting up Warner Bros. Discovery, fielding questions about CNN’s latest reboot, and potentially dealing with overtures from the Ellisons, as my partner Kim Masters noted last night—perhaps the most unbecoming is a looming trial in Delaware over Ugliest House in America. The show is one of the hallmarks of HGTV, which is one of the networks that Zaz is cleaving off, strapping with debt, and forking over to his current C.F.O., Gunnar Wiedenfels. But, for now, it’s his problem.

The plaintiff in the trial, scheduled for later this month, is HomeVestors, a Texas outfit that proudly claims to be the nation’s largest homebuyer—and, even more proudly, clings to its registered trademarks: the slogan “We Buy Ugly Houses,” and its offshoot contest, which is called The Ugliest House of the Year. The company believes HGTV’s renovation series is infringing on its marks, muddying the brand, and—somehow—profiting off viewer confusion. HomeVestors wants Zaz & Co. to hand over the proceeds, and change the title of the show.

A few years ago, this sort of lawsuit would’ve been dead on arrival. For decades, a tidy little First Amendment doctrine known as the Rogers test protected any use of trademarks in expressive works as long as they were “artistically relevant” and didn’t explicitly mislead anyone. It stemmed from Ginger Rogers’s ill-fated attempt to stop Federico Fellini from using Ginger & Fred as the title for his 1986 film about a pair of retired Fred Astaire and Ginger Rogers imitators. The court, quite sensibly, said no.

But then came Jack Daniel’s v. VIP Products, the Supreme Court’s unexpected foray into the world of whiskey-bottle-shaped chew toys. The justices declared in 2023 that when a trademark was used “as a mark”—that is, to identify or distinguish the source of a product—the Rogers test no longer provided a free pass. In the aftermath, courts have been notably less indulgent. Even newsletter companies and low-budget horror flicks are finding themselves in trademark trouble.

So WBD is now making several arguments: that “ugliest house” is a descriptive phrase; nobody’s actually confused; and, critically, HomeVestors hasn’t shown a whit of real harm. The company also insists it landed on the title innocently, inspired by a 2016 New York Post story about a five-bedroom monstrosity in Avon, Connecticut. (Whether that home qualifies as tastefully hideous, or just hideous, may be a matter of personal preference.)

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Still, if the judge doesn’t toss the case on summary judgment, a jury may soon decide whether Ugliest House in America sounds a bit too much like a Dallas marketing slogan dressed up for primetime TV. One imagines Zaslav would prefer to be litigating over awards season documentaries, or, well, anything else. But this is 2025. Cable’s still alive, if barely. And in a world of shrinking margins, even ugly titles can get dragged into court.

A few weeks ago, while previewing Donald Trump’s looming defamation clash with Rupert Murdoch over The Wall Street Journal’s Jeffrey Epstein report, I noted an adjacent legal drama. Down in Florida, Laura Loomer’s suit against Bill Maher had survived what might be called libel law’s new groan test. As you may recall, Maher joked on his show that the MAGA influencer had slept with Trump. The audience groaned, rather than laughed—which, a federal judge reasoned, meant some viewers might have taken it as a factual claim. And so, into discovery we go—where the case has quickly become every bit as unhinged as one might expect.

Exhibit A: Loomer’s deposition, which briefly surfaced on the public docket last week before being sealed. I happened to get a look at the document, and here are some takeaways: The 32-year-old far-right provocateur attempted to prove that Maher’s throwaway quip torpedoed her shot at a White House job. Under oath, Loomer described her clout in Trumpworld, saying that Trump was initially impressed in 2023 by her “reporting” on Ron DeSantis’s alleged misuse of taxpayer funds. Loomer said that he invited her to Mar-a-Lago, and instructed now-White House chief of staff Susie Wiles to hire her on the spot. That didn’t happen, Loomer says, because of a well-timed and critical leak to The New York Times’s Maggie Haberman. (The headline referred to her as an “Anti-Muslim Activist.”)

Still, as Loomer testified, she’d continued to enjoy access, visiting Mar-a-Lago “20, 30 times,” texting with Trump, flying on his jet, and even submitting a résumé and cover letter for an administration job. By last September, her proximity to Trump was attracting attention. During the Trump–Kamala Harris debate that month, he made his infamous remark about Haitian immigrants in Ohio “eating dogs”—a claim that many reporters looked to trace to you-know-who. Guess what? At her deposition, she recounted showing Trump what she said was a police report, mid-flight, after he’d asked of the rumor, “Is this real?”

Not long after the debate, Maher made his joke. HBO’s attorney, Kate Bolger of Davis Wright Tremaine, tried to steer Loomer toward reason. “Other than Bill Maher, can you name a single human being on all of Planet Earth that believes what Bill Maher said?” she asked. “It’s up for interpretation,” Loomer responded, adding that Trump’s campaign manager Chris LaCivita told her she wasn’t welcome back on the campaign plane because of the “media frenzy” Maher had triggered. Loomer emphasized that Wiles would have been the one to hire her—and that the $180,000 government salary she might have earned was more than she was making at the time.

The deposition’s high—or low—point came when Bolger pressed Loomer on some of her more indelicate commentary over the years, possibly to suggest she’s no stranger to slinging innuendo, or simply to establish that Maher’s off-color joke could not have done meaningful reputational damage to someone with her Google search history. Loomer was grilled about past remarks regarding Harris’s anatomy (we won’t repeat it here), the governor of Illinois (“Why does J.B. Pritzker want a grown man to walk into a girl’s bathroom?” she responded), and the personal lives of Kevin McCarthy and Lindsey Graham. As for Rep. Marjorie Taylor Greene? “She’s very jealous of me,” Loomer testified. “Trump’s staff told me that they can’t stand Marjorie Taylor Greene.”

As the deposition wore on, Loomer shifted from gossipy witness to combatant. She accused Bolger of donating to Democrats and brought up her firm’s representation of ABC News in the Trump-Stephanopoulos case, which Disney settled for $16 million. “I’m not going to be gaslit by a Democratic lawyer who represents fake news media,” Loomer huffed. (Disclosure: DWT also represents Puck.)

The full deposition was appended to a motion opposing Magistrate Judge Philip Lammens’s order of confidentiality. Loomer and her attorney—the ever-litigious Larry Klayman—even threw in a 2019 story I wrote about DWT for The Hollywood Reporter, headlined, “Meet Trump’s Least Favorite Lawyers Defending CNN, BuzzFeed’s Dossier, and Media Rights.” Why? I’m not quite sure. But the attempt at trolling backfired. Lammens promptly sealed the deposition, and gave Loomer and Klayman 10 days to explain why they shouldn’t be sanctioned for violating a protective order covering the discovery materials.

Elsewhere in Florida, I’ve been tracking the criminal hacking case against Timothy Burke, the Tampa media consultant facing federal prosecution after obtaining, and leaking, unaired portions of an interview of Kanye West conducted by then-Fox News host Tucker Carlson. Burke heads to trial next month, where he’s primed to present himself as an innocent freelance journalist who merely accessed an “obscure but publicly available” live feed—not a hacker who deserved to be indicted on 14 federal charges.

Before the courtroom drama begins, however, U.S. District Judge Kathryn Mizelle has been raising provocative questions about the Wiretap Act and its intersection with the First Amendment. Mizelle, a Trump appointee and one of the youngest judges on the federal bench, at age 37, has asked outside experts to weigh in on whether it could be technically illegal to watch videos on a streaming platform, or visit a public-facing webpage, setting aside the law’s exceptions. The possibility of the feds using a vague law as punishment has prompted media advocates to sound the alarm: If access alone is criminalized, they argue, even inadvertent discoveries—like, say, sealed court documents—could become prosecutable offenses, giving authorities a potent tool to chill newsgathering.

Tech groups have filed amicus briefs urging a more nuanced interpretation that hinges on who’s authorized to view the content in question. Naturally, this has sparked the kind of hair-splitting debate only the Wiretap Act can inspire: Are Netflix viewers committing federal crimes? Whose responsibility is it to prove a legitimate or illegitimate viewing? The government assures Mizelle that subscribers are safe, protected by the statute’s “ordinary course of business” exception. But Burke’s lawyers counter that it’s not Netflix’s business that matters—it’s the viewers’ intent and access that could, absurdly, render “millions” of casual subscribers vulnerable to prosecution.

No, Stranger Things fans aren’t going to prison. But this wonky case seems tailor-made for an exciting appellate journey—one that could result in some strange consequences for journalists, streamers, and anyone who’s ever stumbled across something they weren’t supposed to see online.

Thanks, Eriq. I’ll be back on Thursday.

Matt

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