Hi, and welcome back to Legal Geek. This week, in the final iteration of Current Geek before the relaunch, we do a mega segment that provides updates on three video game cases we have touched on before, as some major decisions were handed down in the past couple weeks.
The first case was a copyright lawsuit over whether tattoo artists could sue Take-Two Interactive, the video game producer of the NBA 2K series, for including realistic tattoos in depictions of selected players including LeBron James in those video games. Similar cases in the past did not provide much precedent as EA had settled a lawsuit over player tattoos on a video game cover and the case about re-use of Mike Tyson's face tattoo in The Hangover sequel had clearly different facts than this case.
The copyright lawsuit was dismissed this month on several grounds. The judge ruled that Take-Two was protected by the fair use doctrine and also that the fleeting shots of the tattoos in the game were too insignificant to make a valid claim of copyright infringement. Most importantly, the judge stated that the tattoo artists gave the players implied licenses to use those tattoos moving forward as part of their likenesses, and so the players could grant Take-Two the rights to show those tattoos as part of the player's licensing their likenesses for the game.
The primary takeaway is that the denial of such claims stops a Pandora's box of new liabilities from being opened against media companies like video game producers and TV and movie producers.
The second case was the trademark infringement lawsuit brought by the maker of Humvee trucks against Activision Blizzard for unauthorized inclusion of that vehicle in Call of Duty series games. The relevant legal test to be applied in this context of expressive works like video games and movies is a tough one for the automaker, specifically requiring that an accuser show that the trademark used is completely irrelevant to the work or that the author is using it to explicitly mislead consumers. Only if an accuser can prove both prongs does the First Amendment right to free expression get overcome by trademark rights.
As we predicted on a prior segment, the auto manufacturer could not prove either of these high burdens. The judge in the case rejected the trademark infringement claim, noting that Activision's use of Humvees in Call of Duty have artistic relevance by adding realism and life-likeness to the game, with no misleading of consumers.
The primary takeaway here is that real-life trademarks can be used in artistic works like video games, so long as the general rules of this legal test are followed, and they are relatively easy to follow in most circumstances.
The final case for today was one of the lawsuits filed against Epic Games, makers of Fortnite, for signature dance moves included as an emote in that game. A saxophone player known for his viral videos sued for false designation of origin, false endorsement, and for violating his right of publicity. This was different from the copyright approach taken by others who had sued over Fortnite, including the makers of the Carlton Dance and the Floss dance.
The judge in this case did not throw out all claims against the video game maker. As to the right of publicity accusations about improper use of name and likeness, these claims were deemed barred by First Amendment protections because Epic transformed his image into its own creation by making the avatars their own independent creations. And while the false designation of origin claim was also doomed because Supreme Court precedent states that claims over dance move creative expressions are better handled by copyright law, the false endorsement claim has been allowed to go on because it does not deal with trademark likelihood of confusion, but instead, whether a false sense of the saxophone player's endorsement is created by Epic using these dance moves. So the case will go on in at least one regard.
The primary takeaway for this case is that while Epic Games has successfully defended against copyright claims, the most natural ones to be brought according to legal precedent, this case could open a new legal avenue for potential liability of such video game makers to well-known or viral online personalities.
The copyright lawsuit was dismissed this month on several grounds. The judge ruled that Take-Two was protected by the fair use doctrine and also that the fleeting shots of the tattoos in the game were too insignificant to make a valid claim of copyright infringement. Most importantly, the judge stated that the tattoo artists gave the players implied licenses to use those tattoos moving forward as part of their likenesses, and so the players could grant Take-Two the rights to show those tattoos as part of the player's licensing their likenesses for the game.
The primary takeaway is that the denial of such claims stops a Pandora's box of new liabilities from being opened against media companies like video game producers and TV and movie producers.
The second case was the trademark infringement lawsuit brought by the maker of Humvee trucks against Activision Blizzard for unauthorized inclusion of that vehicle in Call of Duty series games. The relevant legal test to be applied in this context of expressive works like video games and movies is a tough one for the automaker, specifically requiring that an accuser show that the trademark used is completely irrelevant to the work or that the author is using it to explicitly mislead consumers. Only if an accuser can prove both prongs does the First Amendment right to free expression get overcome by trademark rights.
As we predicted on a prior segment, the auto manufacturer could not prove either of these high burdens. The judge in the case rejected the trademark infringement claim, noting that Activision's use of Humvees in Call of Duty have artistic relevance by adding realism and life-likeness to the game, with no misleading of consumers.
The primary takeaway here is that real-life trademarks can be used in artistic works like video games, so long as the general rules of this legal test are followed, and they are relatively easy to follow in most circumstances.
The final case for today was one of the lawsuits filed against Epic Games, makers of Fortnite, for signature dance moves included as an emote in that game. A saxophone player known for his viral videos sued for false designation of origin, false endorsement, and for violating his right of publicity. This was different from the copyright approach taken by others who had sued over Fortnite, including the makers of the Carlton Dance and the Floss dance.
The judge in this case did not throw out all claims against the video game maker. As to the right of publicity accusations about improper use of name and likeness, these claims were deemed barred by First Amendment protections because Epic transformed his image into its own creation by making the avatars their own independent creations. And while the false designation of origin claim was also doomed because Supreme Court precedent states that claims over dance move creative expressions are better handled by copyright law, the false endorsement claim has been allowed to go on because it does not deal with trademark likelihood of confusion, but instead, whether a false sense of the saxophone player's endorsement is created by Epic using these dance moves. So the case will go on in at least one regard.
The primary takeaway for this case is that while Epic Games has successfully defended against copyright claims, the most natural ones to be brought according to legal precedent, this case could open a new legal avenue for potential liability of such video game makers to well-known or viral online personalities.
The Bottom Line is: the legal world is still spinning despite a lot of court delays caused by the COVID-19 pandemic. It just happens to be that some of these most interesting video game cases are all coming to important decisions while we have extra time to read about them and cover them. For the most part, video game creators are winning these battles, assuring the viability of their business plans and game development to continue.
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