Fair use advocates want updated publicity rights ruling

In declining to hear a case involving licensing fees for former NCAA players in a video game, the U.S. Supreme Court also dealt a blow to fair use advocates, who hoped the nation's high court would seize the rare opportunity to update its stance on rights of publicity.

The case in question involved Electronic Arts' notably life-like depictions of college athletes. Davis v. Electronic Arts Inc., 775 F.3d 1172 (9th Cir. 2016)

"It's been 40 years," said Electronic Frontier Foundation attorney Daniel Nazer, referring to a 1977 case in which the Supreme Court established a standard for right of publicity. "I hope it's not 40 more."

The court ruled in favor of the plaintiff in 1977 ? a "human cannonball performer" who claimed a broadcasting company recorded his act without permission ? finding that the First and Fourteenth Amendments did not immunize media outlets from civil liability. Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 563-64 (1977)

Though that case established a standard for right of publicity, Nazer said it didn't establish a method to determine where right of publicity ends and fair use begins, instead leaving the lower courts to devise their own methods.

One such method, the transformation test, causes courts to review expressive works with excessive scrutiny, especially with less conventional mediums like comic books or video games, according to Douglas Mirell, partner at Harder Mirell & Abrams LLP.

To wit, a lawsuit filed by former hockey player Tony Twist claimed a character who appeared in a comic book named "Twist" and who bore a few minor similarities to the hockey player violated Twist's right of publicity.

A circuit court found the comic creator had infringed and awarded Twist $15 million. The Supreme Court declined to hear the case. Doe v. TCI Cablevision, SC84856 (July 29, 2003)

On the other side of the fence, Mirell said, is the recent case involving "Hurt Locker."

Though both sides acknowledged that the film's writer had traveled with and interviewed plaintiff Jeffrey Sarver a number of times, the defense successfully argued the character was a composite of many soldiers and was sufficiently transformative. Sarver v. Chartier,11-56986 (9th Cir. Feb. 17, 2016)

"If you look at a case like TCI, It had an oblique reference to a famous person. Meanwhile, you can make a full length biopic without permission and it will pass the transformative use test," Nazer said.

"[Courts] apply this test in a way that isn't faithful to the way it's articulated," he added.

Video game companies such as EA could be hamstrung by the fact that the 1977 Supreme Court ruling can't account for the tremendous jumps forward in technology, video game attorney Patrick Sweeney of IE Law Group said.

"It's a problem that we run into on a bunch of different levels where things are made into an issue when they weren't an issue in 1977," he said.

"Nobody could look at the first Madden game and say 'Oh, hey that's Tom Brady.' So it wasn't really an issue...I think the more realistic it gets, the more people care."

The realistic depictions of the band No Doubt in the video game "Band Hero" was a central issue in their lawsuit against Activision Publishing Inc., which in turn argued the use was transformative. The 2nd District Court of Appeal agreed with No Doubt's belief that the motion-captured depictions were too realistic to qualify. No Doubt v. Activision Publishing Inc., 192 Cal. App. 4th 1018 (2011)

Entertainment attorney Scott Hervey, partner at Weintraub Tobin Chediak Coleman Grodin Law Corporation, said that if the same standards applied to the No Doubt case were used in other courts , the result might have been different.

Though EA lost its case in the 9th U.S. Circuit Court of Appeals under the transformation test, it may well have won in the 6th Circuit, where they instead use the "Rogers test."

Nazer said the Rogers test is similar to the transformation test, but provides more leeway by asking the court to weigh the value of the artistic depiction against the value of the trademark.

"It ends up being harder for the person bringing the claim," Nazer said, noting that EFF is advocating for something of a hybrid version of the Rogers test over the transformation test.

Discrepancies among the lower courts was something the Supreme Court's review could have put an end to, Nazer said, and there's no telling when they'd get another such opportunity.

Especially with a case that doesn't carry baggage that might dissuade the court from stirring the pot.

"Even in places where we tend to get a lot of support, I've noticed this is one we really have to work to convince people there's an open speech issue involved," Nazer said. "A few defendants in these cases have been fairly unsympathetic."

steven_crighton@dailyjournal.com