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>EA Files Lawsuit Over Dillinger Publicity Rights Claim

>On September 2, EA filed for declaratory judgment against Dillinger, LLC (the entity claiming to hold all publicity rights relating to the late and notorious John Dillinger), seeking validation of EA’s claim that its family of “Godfather”-themed games do not misappropriate any publicity or trademark rights in the Dillinger name.

The Dillinger clan was originally riled over the inclusion of the “Dillinger Tommy Gun” as a weapon option in the first “Godfather” game (released in 2006) and took further exception to the updated “Modern Dillinger” firearm available in the 2009 sequel. According to EA’s complaint, Dillinger, LLC contacted EA on July 22, 2009 – the 75-year anniversary of John Dillinger’s shooting death in Chicago – and demanded “millions of dollars for the game elements purportedly covered by its publicity right[s] and trademarks.” In the compaint, EA alleges that its use of any reference to John Dillinger is transformative within the context of the underlying work (the games, themselves) and therefore protected under the First Amendment.

The dispute makes EA and Dillinger, LLC the latest entrants in a growing debate regarding what value can (or should) be attached to so-called “publicity rights” and the circumstances under which an individual or his/her estate may license or prevent their use. The lack of a federal law governing the subject has relegated the matter to state courts, which have adopted various mechanisms for balancing the constitutional interests of defendants against the property interests of plaintiffs. Depending on a court’s location and a jury’s evaluation of the expressive, versus commercial, nature of the defendant’s ultimate goals, the publisher of any medium in which a famous personality is referenced could find his- or herself paying damages as a result of their desire to tie a pop-culture or historical figure into their works.

Previously confined primarily to movies, television, and even comic books, publicity rights issues have begun to creep into the video game industry over the past few years. As recently as September 11, 2009, for instance, Courtney Love, widow of deceased musician Kurt Cobain, threatened to sue Activision based on the publisher’s inclusion of her late husband as a character in Guitar Hero 5 (released September 1, 2009).

Not all publicity rights scenarios result in conflict, however, and their proper management could prove to be very rewarding to a savvy party. In March 2008, Ubisoft, in an unprecedented move, purchased the media rights to the Tom Clancy name for an undisclosed amount. Given that the Paris-based publisher has sold millions of units of series such as “Tom Clancy’s Rainbow Six,” “Tom Clancy’s Splinter Cell” and “Tom Clancy’s Ghost Recon,” it’s a small wonder that the game publisher would want to sew up the rights to its golden goose. Even more impressive is the fact that the acquisition includes all rights to use of the name in connection with products such as video games, movies and books, and Ubisoft has stated its intention to exploit the potential of the Tom Clancy brand in each of those areas.

Movie studios often rely on the reputation and notoriety of their stars to increase the bankability of their film projects; should we really be surprised that video game studios and publishers are now looking to utilize celebrities in the same manner? After all, in an age where video game development increasingly focuses on components such as story and artistic presentation, rather than mere gameplay mechanics, it makes sense to secure the rights to talents or reputations that can bring success in those areas. So, while the video game industry is currently preoccupied with the type of publicity rights squabbles represented by EA and Dillinger, LLC, it’s feasible that we aren’t too far off from seeing an increase in announcements more akin to last year’s Tom Clancy bombshell.

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September 2009