In response to a cease and desist letter from Justin Bieber’s representatives demanding that the “Joustin’ Beaver” app be terminated, RC3 (maker of the Joustin’ Beaver” app) has filed a declaratory action. The lawsuit was filed in Jacksonville, Florida.
RC3 claims the video game is a parody on Justin Bieber’s life, as game play involves signing “otter-graphs,” paparazzi-like hogs, and evading the “whirlpool of success.” How this is a parody on Justin Bieber’s life, aside from a few grade-school puns, is hard to discern. That it is popular and has a built-in market thanks to Justin Bieber’s name is not. Bieber also has not been all that controversial in his public and private life as compared to, say, a Lindsay Lohan, who might seem more fitting for such a “parody.”
There certainly is room in the Right of Publicity universe for a parody defense, but it almost always seems to be invoked as an attempt to defend blatant opportunism and appropriation. Video games historically have not been treated as exempt from Right of Publicity and other intellectual property doctrines, though the effort to afford them that heightened level of protection has been vigorously pursued in recent years. Despite the creative decisions that go into creation of a video game, I see a clear line of delineation between mediums such as books, movies or news reporting and that of video games.
Books, movies and news reporting, at their core, are about the expression of ideas and conveying information. Video games are not. There are numerous rulings explaining how the First Amendment is not a one-size fits all “shield” to otherwise infringing actions, including the United States Supreme Court in the landmark Zacchini case. http://rightofpublicity.com/pdf/cases/zacchini.pdf And, of course, even the generally exempted mediums can exceed those protections and stray into infringing territory. But video games should not be entitled to exempted status as a general rule. The Supreme Court ruling striking down a California law prohibiting sales of violent video games to minors is not an appropriate reference point in relation to an intellectual property infringement of the Joustin’ Beaver variety, though it seems to be cited as support for the notion that video games should be treated in the same manner as books and movies. http://www.hollywoodreporter.com/thr-esq/supreme-court-strikes-down-california-205827
Here is a link to Eriq Gardner’s write-up in The Hollywood Reporter.