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Movies vs. Videogames: Two-Faced Treatment of Right of Publicity?

News and Notes Focused on the 3 Public Faces of IP Law

  • Brand Image Protection - Trademark Law
  • Visual Image Protection - Copyright Law
  • Personal Image Protection - Right of Publicity Law

The Image Protection Law blog has been created in order to share stories and information on the legal aspects of: 1) the marketplace reputation of a company or product captured in its trademark, 2) published or publicly-displayed artwork, photography, and any created visual design, and 3) use of a person's photograph or likeness for product promotion or other commercial purposes.

The "IP3" share at least one thing in common: Image is everything. In these posts let's look at what that means in the realm of intellectual property in the news, but let's also be prepared to explore if there's something more beyond "everything." Don't forget, the intellectual in "intellectual property" doesn't mean smart or brainy, although by nature true creators often are. The word is used to refer to any creation, i.e., a "product of the mind." While this blog will be regularly updated, you are encouraged to share your thoughts on these posts.

Personal Image Protection: A veteran of the Iraq War filed a right of publicity complaint against the producers of the award-winning film "The Hurt Locker based on the portrayal of his character as the IED disposal expert. Put simply, the issue was whether the portrayal of Sarver was merely a commercial use of his persona or whether it was protected First Amendment expression.

The Ninth Circuit Court of Appeals in Sarver v. Chartier in February found that it was protected speech affecting matters of public interest. The court identified what case law says are the three three categories of public issues: (1) statements concerning a person or entity in the public eye; (2) conduct that could directly affect a large number of people beyond the direct participants; (3) or a topic of widespread, public interest.

Sarver relied on the California case of Dyer v. Childress as a case where plaintiff Dyer had been portrayed as the real-life slacker in the movie Reality Bites. In that case the court held that there was no public interest in Dyer's persona, and the other two categories did not apply in the movie's fictional narrative not involving history or current events. However, Sarver's occupation and the context in which he performed his work - disposing IEDs in the Iraq war - made his case a matter legitimate public interest where Dyer's was not. The court even found that his personality, including how he behaved in the Iraq wartime environment, was of public interest because it was "inherently entwined" with his participation in the war.

Contrast the case of Electronic Arts v. Davis where only a few days ago the U.S.Supreme Court refused to hear EA's appeal following a Ninth Circuit ruling that there was not First Amendment defense to right of publicity claims for a the Madden NFL football videogame where the game used their physical attributes, position, relative ability, and other identifying attributes, but not names, in the game. The Ninth Circuit, however, held that such a use of historic or public figures in an "expressive" work (as is a movie or book) must also be "transformative" by adding new expression, comment or meaning to the football players' personas.

The upshot seems to be that videogames with real persons are not treated the same as movies even though both are supposed to be expressive works entitled to broad First Amendment protection against right of publicity claims. But it's not "game over" yet; expect more developments in the videogame realm to resolve some of these conflicts.

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