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The latest interpretation of the Transformative Use test

January 8, 2015 2 Comments »
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In ruling for the plaintiffs in Davis v. Electronic Arts earlier this week, the Ninth Circuit has given us the latest interpretation of the Transformative Use test.  This ruling comes only a few months following a contrasting ruling in Noriega v. Activision, in which the Transformative Use defense led to a ruling in favor of the defendant.

The Activision case centered on inclusion of former Panamanian dictator Manuel Noriega in Call of Duty:  Black Ops II.  Former New York Mayor Rudy Giuliani served as co-counsel for Activision, and the following Hollywood Reporter article provides good insight as well as a link to the defense’s memo in support of its motion to strike Noriega’s complaint.

It is interesting to consider if the day might ever come when Rudy Giuliani might want to assert his own Right of Publicity in response to a commercial use of some kind.

In its Davis v. Electronic Arts ruling, the court looked to its prior ruling in Keller v. Electronic Arts, where the court also rejected the Transformative Use defense advanced by EA.  The court in Davis v. Electronic Arts stated that the Madden video game “replicates players’ physical characteristics and allows users to manipulate them in the performance of the same activity for which they are known in real life – playing football for an NFL team.”

There are certainly considerable differences between the extent of use, purpose of use, and commercial aspects between the use of former NFL players in the Madden game and that of Noriega in Black Ops II, so in general, I applaud the Ninth Circuit’s rejection of the Transformative Use defense in its determination, and in not taking the usual “throw the baby out with the bath water” that too-often seems to accompany rulings concerning the Right of Publicity, as in the overreaching ruling in Indiana against the heir of John Dillinger in a case against EA.

That ruling led to my effort to amend Indiana’s Right of Publicity statute in 2011 and 2012, which was passed and successfully maintained the integrity of Indiana’s Right of Publicity statute:

Here is a link to the January 6, 2015 ruling in Davis v. Electronic Arts:

2 thoughts on “The latest interpretation of the Transformative Use test

  1. Robert Zipser says:

    Question: Has Noriega appealed? Or does he plan to? Because while I agree with you about the Davis case, I disagree 100% with the L.A. Superior Court’s ruling in Noriega. Why do you think that Noriega should be treated any differently than avatars for pro and college football players or the members of the No Doubt band? Was there any doubt that the avatar was Noriega engaged in those very acts that Noriega engaged in? I am pretty certain that Noriega would win if he appealed.

    Robert Zipser, Esq. (author “What’s In A Name” Entertainment Publishing & The Arts Handbook 2014 (West))

  2. jfaber says:

    I don’t know for certain, but I do not think Noriega appealed. You may be right that an appeal could find a different result, but use of Noriega in this instance likely can be differentiated from the use of the athletes or musicians that occurred on the grounds that being a political figure of sorts triggers somewhat different analysis and treatment. I have not seen the game with Noriega in it, but the nature of the use may not be as overtly commercial or central to the game programming as No Doubt was or the athletes were in the other respective video game. Admittedly, it can seem like a bit of a double standard when some personalities are protected and others are left without protection, but that seems to be the the reality for elected officials and political figures. Ultimately, everything can hinge on the specific context and details of the exact use that occurred.

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