In January 2015, in Davis v. Electronic Arts Inc., the United States Court of Appeals for the Ninth Circuit held that the makers of the extremely popular Madden NFL video game series could not overcome former players’ claims for violation of publicity rights by claiming First Amendment protections. Electronic Arts Inc., the Defendant and the maker of the game, eventually appealed to the United States Supreme Court on grounds that they are essentially being penalized for making a game that is “too realistic” and life-like. An emboldened use of the “we are just too good at our jobs” defense, perhaps?
On Monday, March 21, 2016, without any further commentary, the Supreme Court denied EA Sports’ petition to hear the appeal. Procedurally, this is called a denial of certiorari, and it means that the Ninth Circuit’s verdict remains the final judicial determination on the issues presented. Colloquially speaking, and while maintaining the proper sports metaphors, this means the Supreme Court punted.
But what really is the issue here? Where do publicity rights end and the First Amendment begins? Why does EA Sports contend that it has no obligation to pay retired professional athletes for the use of their images and likeness rights?
Today is Good Friday, the legal and Christian religious holiday of sorts commemorating the crucifixion of Jesus Christ. Sunday is Easter, celebrating the resurrection, concluding Holy Week, and also culminating in the end of the religious period known as Lent. These events have been recognized throughout the Christian and secular world for over 2,000 years.
Easter is also big business. From “Easter eggs,” to chocolate bunnies, to special pastel-colored clothing for Sunday church services, the holiday has been commercialized. Not surprisingly, there are multiple registered trademarks that are Easter-themed. Here are just a few:
No new card games are patent-eligible without the invention of a new deck
On October 26, 2010, two enterprising individuals from New Jersey filed a patent application with the United States Patent and Trademark Office for a “Blackjack Variation.” The Smiths sought to acquire patent rights to a new casino game they called “Pacific Rim Blackjack.” It appears that these inventors created a card game variant that merges the concepts of blackjack with Baccarat. The application claims that “casinos are in constant need of new games of chance to retain and attract patrons.” Additionally, the patent application asserts that existing games of chance such as blackjack, Three-Card Poker™, Baccarat, and Pai Gow are “popular” but “suffer from drawbacks.”
Due to the applicants’ unprovoked attack on the greatness that is Pai Gow poker, the USPTO rejected the patent application in whole. Well, okay, the patent examiner and later the Patent Trial and Appeal Board (PTAB) actually rejected the application on grounds that the alleged invention is “abstract” and therefore not patent eligible subject matter. The inventors appealed this decision and on March 10, 2016, the Federal Circuit affirmed. Though the interesting part of the decision is not the rejection of the application itself – it was the Federal Circuit’s rationale and hints at the types of card games that might actually be patentable.
Comic book movies are big business. It was not always this way. Even if it seems that all Hollywood movies today are merely adaptations of comic book characters. Superman and Batman were always popular characters and were the focus of relatively successful movies. This includes the Christopher Reeve Superman movies through the launch of Tim Burton’s Batman franchise in 1989. But the recent trend of superhero dominance at the box office essentially began with Bryan Singer’s X-Men in 2000.
X-Men languished in development for years, but then surprised with a massive box office haul that summer – and made a star out of Hugh Jackman in the process. It also adopted the tone of the comic books and made it safe to adapt the concepts as a movie. The success of X-Men begat the Tobey Maguire Spider-Man franchise, which begat the Christopher Nolan Dark Knight trilogy, and suddenly Warner/DC Comics’ and Marvel’s collective catalog of characters became hot property. Not all characters have been treated equally, however. Batman, for example, will always be seen as a safer bet than, say, Ghost Rider. Movies are budgeted accordingly.
Today, the average Hollywood movie budget exceeds $100 million. This includes salaries for the cast and crew, CGI costs, and in many cases… licensing rights. Yes, your favorite comic book characters are subject to both copyright and trademark protections. Like I said, it is big business.
How do these licensing and intellectual property issues affect the production of a movie for a minor character like, say, Deadpool? Let the games begin!