While not exactly a video game case, we thought our readers might find this of interest.

On August 5, 2015, Plaintiff Joseph Tierney sued Defendants Moschino S.p.A. and Jeremy Scott for copyright and trademark infringement, unfair competition, and violation of the right of publicity.

Tierney is a graffiti artist known as "Rime", who is famous for his work entitled, "Vandal Eyes". Vandal Eyes (shown above, left) is a giant mural covering the side of a building, which Rime was asked to create by a Detroit property owner. Defendants are high-end fashion designers, who used Rime's artwork and fake signature on their clothing line, advertisements, and in media photographs, without Rime's consent. Defendants used literal copies of the Vandal Eyes mural in their Fall/Winter 2015 Collection. The Collection gained international media attention through the world when it was displayed on runways and worn by celebrities including actress Katy Perry and model Gigi Hadid.

Plaintiff alleges his reputation and career have been damaged by Defendants' unauthorized use of his artwork. Plaintiff stated that he carefully chose a target audience to display his graffiti artwork, and he deliberately did not associate with Moschino's fashion line. Additionally, Plaintiff alleges that Defendants benefited from using the mural because Moschino revenues increased by about 10% since the launch of the Collection.

We will continue to monitor this case for interesting updates.

Jumping on the "Hey, that's me!" bandwagon, Former Panama dictator Manuel Noriega, 80, filed a lawsuit in California yesterday against video game publisher Activision Blizzard Inc., alleging that Call of Duty: Black Ops II portrays him as "a kidnapper, murderer and enemy of the state."

In the game, a character that looks like the real Manuel Noriega and is also named Manuel Noriega assists the CIA but then betrays them. In real life, Noriega was a close US ally until the Americans became concerned with the dictator's penchant for using violence against his enemies and citizens. The US dropped ties and invaded Panama in 1989. Hat tip to The Verge for the news.

This sounds somewhat similar to Linday Lohan's recent lawsuit against Take-Two Interactive and Rock Star Games. As you may recall, Lindsay Lohan recently sued Rockstar Games and its owner Take-Two Interactive over a character in Grand Theft Auto V that she alleges is an "unequivocal" representation of her image, according to the Associated Press. The suit was filed in Manhattan, claiming that Lohan's voice and image are reproduced in the game, as well as styles directly from her clothing line. The character at issue is Lacey Jonas, a vain and demanding actress trying to escape from a group of paparazzi. Strangely enough, Jonas drew Lohan's attention despite being a fairly minor character in GTA V. It's not clear if Jonas is meant to be a direct play off of Lohan or a caricature of Hollywood stars in general, but the Grand Theft Auto series has never been a stranger to parodying anything, from businesses, to television shows, to people.  Read on at The Verge.

Lindsay Lohan is suing Rockstar Games and its owner Take-Two Interactive over a character in Grand Theft Auto V that she alleges is an "unequivocal" representation of her image, according to the Associated Press. The suit was reportedly filed today in Manhattan, claiming that Lohan's voice and image are reproduced in the game, as well as styles directly from her clothing line. Take-Two did not immediately respond to a request for comment from The Verge.

The character at issue is Lacey Jonas, a vain and demanding actress trying to escape from a group of paparazzi (as seen in the video above). Strangely enough, Jonas drew Lohan's attention despite being a fairly minor character in GTA V. It's not clear if Jonas is meant to be a direct play off of Lohan or a caricature of Hollywood stars in general, but the Grand Theft Auto series has never been a stranger to parodying anything, from businesses, to television shows, to people.

Case Update:

When last we checked in on this case (02/08/2010), plaintiffs had survived motions to dismiss the case from both EA and the NCAA. On May 2, 2011, Judge Wilken dismissed claims that EA, along with the NCAA, conspired to avoid paying student basketball and football players for the use and sale of their likenesses in popular NCAA-themed video games. However, plaintiffs were given two weeks to amend their anti-trust allegations, and the court refused to throw out any right-of-publicity claims.

The publicity claims accuse EA of using the players' images without their permission, and the NCAA of turning a blind eye to EA's actions in order to reap substantially higher royalty rates, given the greater popularity of games showing players that look like the real student-athletes. These claims are now set to move forward into discovery.

For more details on developments on both the antitrust and rights of publicity fronts, see Law360.

Original Post:

On Monday, February 8, 2010, the U.S. District for the Northern District of California ruled on a motion to dismiss filed by Electronic Arts (“EA”), the National Collegiate Athletics Association (“NCAA”), and the Collegiate Licensing Company (“CLC”) in Keller v. Electronic Arts, Inc., Case No. 09-cv-01967-CW.

While the court granted the defendants’ motion to dismiss as to some of Keller’s claims, the court denied the motion to dismiss as to some of Keller’s claims against EA.

Keller, a former starting quarterback for the Arizona State University (“ASU”), filed this lawsuit last May against EA and the other defendants, alleging that EA used his likeness without his consent and that the NCAA enabled this use. Among the various claims that Keller asserted against the defendants is a claim against EA for alleged violations of California’s statutory and common law rights of publicity.

In this round of motions, EA argued that Keller’s claims were barred by the First Amendment and other possible defenses under California law.

As to EA’s First Amendment argument, the court stated that “[a] defendant may raise an affirmative defense that the challenged work is protected by the First Amendment inasmuch as it contains significant transformative elements or that the value of the work does not derive primarily from the celebrity’s fame. . . . The defense poses what is essentially a balancing test between the First Amendment and the right of publicity.” Slip. Op. at 6-7 (internal quotes and citations omitted).

With this standard in mind, the court determined that “EA’s depiction of [Keller] in ‘NCAA Football’ is not sufficiently transformative to bar his California right of publicity claims as a matter of law.” Slip. Op. at 9. In arriving at this conclusion, the court noted that the quarterback for ASU in the game shares many of Keller’s characteristics, as the in-game ASU quarterback wears Keller’s jersey number, has the same height and weight, and is purportedly from the same home state. Id.

In addition, in ruling that EA was not entitled to the “public interest” and “public affairs” defenses, which EA asserted under California law, the court noted that EA’s game goes beyond mere reporting of “just the players’ names and statistics; it offers a depiction of the student athletes’ physical characteristics and, as noted, enables consumers to control the virtual players on a simulated football field.” Slip Op. at 13; see id. at 13-15.

We will continue to follow this case.

Case Update:

Some time ago we wrote about Dillinger, L.L.C. ( a company that claims to own the rights of publicity and trademark to the names and nicknames of the late Depression Era bandit, John Dillinger) filing suit against Electronic Arts over its use of the “Dillinger” name in its “Godfather” line of video games. On June 15, 2011, the district court judge ruled that the plaintiffs could not bring state law right of publicity claims. On June 16, the court granted summary judgment to EA on Dillinger’s trademark claims, effectively handing EA a total victory in the case.

John Dillinger, according to the court order, was a notorious Indiana gangster who terrorized the Midwest for several years, until he was gunned down by the F.B.I. in a Chicago firefight, in 1934. Under a relatively recent Indiana statute, which recognized a descendible right of publicity, plaintiffs claimed the right to control Dillinger’s “personality” rights for commercial purposes. The court found however, that Indiana’s Right of Publicity Statute does not apply to persons who died before the enactment of the statute, and that videogames also fall under the “literary works” exception to the statute.

As regards the trademark infringement claims, the court found that EA had an affirmative fair use defense under the First Amendment. Plaintiff tried to argue that use of the Dillinger name had no artistic relevance to the video game, and so could not be eligible for First Amendment trademark protection under Rogers v. Grimaldi, 875 F.2d 994 (2nd. Cir. 1989). The court found, however, that EA’s use of the Dillinger name was protected under Rogers because it did have some artistic relevance to the game, and it did not explicitly mislead the public as to the source or content of the work. Dillinger, LLC plans to appeal the ruling.



Original Post:

Dillinger, L.L.C., a company that claims to own the rights of publicity and trademark to the names and nicknames of the late Depression Era bandit, John Dillinger, has filed suit against Electronic Arts over its use of the “Dillinger” name in its “Godfather” line of video games.

In the suit, Dillinger takes issue with EA’s use of the name “Dillinger” for several weapon upgrades that were offered in the Godfather and Godfather II video games. The complaint names two examples: the “Dillinger Level Three Tommy Gun” from the first Godfather game, and the “Modern Dillinger Level Four Tommy Gun” from the Godfather II game. The complaint refers to the former as a “swift and gruesome killing machine,” and having played those games, this author can confirm that the guns were indeed swift and gruesome.

Dillinger filed suit in Indiana, and the complaint charges EA with various counts, including alleged violations of Indiana’s Publicity Statute; federal, state and common law trademark law; state unfair competition law; and even includes claims for “Criminal Mischief,” “Conversion” and “Deception” under the Indiana Crime Victims Act. Dillinger seeks monetary damages and injunctive relief, and here’s hoping they resolve this before Valentine’s Day.

The case is Dillinger, L.L.C. v. Electronic Arts, Inc., No. 1:09-cv-1236 (S.D. Ind., filed Oct. 1, 2009), and we’ll keep you posted as we learn more.

Samuel Michael Keller v. Electronic Arts inc. et al.
case number 09-cv-1967
U.S. District Court for the Northern District of California

From Law360:

Law360, New York (May 06, 2009) -- A former quarterback for Arizona State University has filed a putative class action against Electronic Arts Inc. and the National Collegiate Athletics Association for appropriating and using the images and attributes of college sports players in its popular line of interactive video games in violation of NCAA rules, which prohibit commercialization of college players.

Sam Keller, once a starting quarterback for ASU's and University of Nebraska’s football teams, filed the lawsuit Tuesday in the U.S. District Court for the Northern District of California, claiming that EA video games like NCAA March Madness, NCAA Football and NCAA Basketball violate NCAA rules prohibiting the use of college athletes’ names and images in commercial ventures.

It looks like Mr. Keller is trying to get class action status, which could make this a huge case and a potential black eye for the NCAA and EA. Apparently EA has copied the appearance and likeness of players, down to their personal clothing choices and hairstyles, without actually using the players' names. However, many of the games allow users to upload rosters that include the actual players' names. This case just might have legs. We've added it to our tracking list and will keep you posted regarding substantive developments.