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Transformative Use Favored in Sports Video Game Case
By the time in 2011 that the U.S. Supreme Court officially recognized that video games are expressive works under the First Amendment, several federal appeals and district courts had reached the same conclusion. The Supreme Court found California's legislative restrictions on the sale to minors of video games with violent content to be unconstitutional. See, Brown v. Entertainment Merchants Association, 131 S.Ct. 2729 (2011). But in the context of alleged unauthorized uses of an individual's personal indicia, inconsistency ' in how different courts determine whether there are viable claims under state right of publicity laws or for false endorsement or association under the federal Lanham Act ' makes it difficult for attorneys who view content through a First Amendment lens when counseling entertainment production companies.
Rutgers QB Suit Fails Test
A new ruling by the U.S. District Court for the District of New Jersey emphasizes this inconsistency. See, Hart v. Electronic Arts Inc. (EA), 09-cv-5990. The New Jersey case is one of several pending litigations over uses of indicia of former college athletes in video games. The National Collegiate Athletic Association (NCAA) requires its educational-institution members to have college athletes sign consent forms for use of the athletes' right of publicity to promote NCAA events, and for charitable and educational purposes. The athletes receive no compensation from these activities, though the NCAA earns income from licensing athletes' indicia in commercial settings.
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Yachts, Jets, Horses & Hooch: Specialized Commercial Leasing Models
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