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Ninth Circuit to Plaintiff: Game Over! Virtual 'Pig Pen' Protected By First Amendment; 'Barbie Girl' Case Extended to Non-titular Expressive Works
The defendants, producers of the irreverent and popular “Grand Theft Auto” video game series, came out with “Grand Theft Auto: San Andreas.” Players enter the gangster culture of the West Coast in the virtual city of Los Santos, dodging drug pushers and prostitutes in a neighborhood replete with virtual liquor stores, ammo dealers, casinos, pawn shops, tattoo parlors, bars, and strip clubs, while enjoying the sound of random gunfire, in a setting lampooning “the seedy underbelly of LA,” according to its artists. The video game, of course, was a big hit. The game includes, among countless other low-end virtual elements, a strip club named “Pig Pen.”
The plaintiff operates an actual strip club, Play Pen Gentlemen's Club, and brought suit claiming that Pig Pen infringed its mark “Play Pen” and the trade dress associated with it. That allegedly distinctive trade dress included, inter alia, a logo version of the phrase “Totally Nude,” combined with the silhouette of a naked female.
In the intersection between trademark rights and the First Amendment, the Ninth Circuit, relying on Rogers and MCA, upheld the District Court's grant of summary judgment finding that the First Amendment protected the look of the video game's virtual strip joint, as well as the use of the Pig Pen name. E.S.S. Entertainment 2000, Inc. d/b/a Playpen v. Rock Star Videos, Inc., 547 F.3d 1095 (9th Cir. 2008). The Ninth Circuit agreed that there was no trademark infringement of the name of plaintiff's actual strip club, Play Pen, or the “trade dress” in plaintiff's strip club, because the First Amendment allowed the defendants' use.
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