Indianapolis, IN – Intellectual property lawyers for Electronic Arts, Inc., (“EA”) of Redwood City, CA, emerged victorious when Judge Jane E. Magnus-Stinson of the Southern District of Indiana ruled that Indiana’s right of publicity statute and federal trademark law do not prevent EA from using the word “Dillinger” and other identifying characteristics of infamous depression-era bank-robber John Dillinger in its video games.
The plaintiff Dillinger, LLC, sued EA for allegedly including unauthorized references to John Dillinger in its series of video games based upon The Godfather novel and film series. In its complaint, among other things, Dillinger, LLC, claimed that it registered two U.S. trademarks for “John Dillinger” and that, under Indiana law, it had the right to control Mr. Dillinger’s “personality” rights for commercial purposes – that is, his “name, voice, signature, photograph, image, likeness, distinctive appearance, gestures, [and] mannerisms.” Dillinger, LLC, alleged to have acquired those publicity rights by assignment from the heirs of Mr. Dillinger.
Concluding that Indiana’s right of publicity law, which took effect in 1994, is not retroactive and does not apply to personalities who died before its enactment, the court found that the plaintiff failed to state a right of publicity claim. Moreover, Judge Magnus-Stinson opined that “literary works” exception in the Indiana statute should be read broadly in light of the First Amendment and cover video games.
In a separate order ruling on cross-motions for summary judgment, the court accepted EA’s First Amendment defense to its use of the John Dillinger name, finding such use has at least some relevance to the plot of the game and was not “explicitly misleading” with regard to the question of endorsement by Dillinger, LLC.
Practice Tip: The right of publicity is grounded in state law, and Indiana has an expansive right of publicity statute. Indiana law provides recognition of the right for 100 years after death and protects not only name, image and likeness, but also signature, photograph, gestures, distinctive appearances, and mannerisms.
Further Information about the case is as follows:
Filed: October 1, 2009 as 1:2009cv01236 Updated: June 17, 2011 03:06:27
Plaintiff: DILLINGER, L.L.C.
Defendant: ELECTRONIC ARTS, INC.
Referring Judge:Judge Jane Magnus-Stinson
Cause Of Action: Trademark Infringement