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Video game manufacturer EA loses motion to dismiss to NCAA football star Sam Keller

March 24, 2010 1 Comment »
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In yet another ruling concerning video games, the likenesses of notable athletes, and the NCAA, a California judge has rejected Electronic Art’s motion to dismiss a claim brought by former NCAA football player Sam Keller.  It should be noted that this is not a final disposition on the case overall, but rather is an interim ruling that allows Keller’s case to move forward.  It may, however, be a strong indicator of how the court will ultimately decide issues concerning liability and the defenses EA is likely to advance.

The lawsuit centers on the use by EA of Keller EA’s NCAA Football video game. In an effort to support its motion to dismiss, EA argued that its use of Keller’s likeness was not a violation because the use was transformative, and that the use was a matter in the public interest.

I’ll remain neutral on this topic overall, as I have in past entries on point, but it seems to me that the purpose of including an athlete in a video game is for the purpose of not transforming the player but rather ensuring that the game user will recognize the athletes included in the game.  As such, the purpose is quite the opposite of a transformative use.  In the EA game, the content not only included Keller’s jersey number and physical characteristics, but also identifiers like his home state that the game user could view.  The court appeared to agree with this view when it stated that EA showed Keller “as he was.”
As for the newsworthy arguement, the court found that the EA use was not merely news reporting, and the video game use was distinguishable from fantasy football games, which have secured certain First Amendment from the courts in recent years.
Here is a link to the story:

http://www.winston.com/index.cfm?contentid=34&itemid=3755#page=1


Lindsay Lohan and the E*Trade “milkaholic” baby

March 9, 2010 4 Comments »
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Lindsay Lohan has filed a lawsuit in New York against E*Trade, seeking $50 million in compensatory damages and $50 million in punitive damages.  She also seeks to have the advertisement pulled.  The advertisement, which premiered during Super Bowl XLIV,  involves an off-screen female voice asking the on-screen E*Trade baby through a video chat if “that milkaholic Lindsay” was over when he didn’t call her the night before, prompting another baby, Lindsay, to step into the camera and ask “milk-a what?”

The key analysis in most right of publicity claims centers around identifiability.  The question then becomes, is Lindsay Lohan identifiable from the E*Trade use?  I often add “unequivocally identifiable” to clarify the analysis.  Lohan’s attorney has stated that Lohan is famous on a single-name basis, just like Oprah or Madonna.  Whether that can be established may be up to the judge or jury if the parties don’t settle the claim first.

Here is a link to the story:

http://www.msnbc.msn.com/id/35780790/ns/business-media_biz/


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