There has been a wave of celebrity lawsuits against game companies over in-game dance moves allegedly made famous by the celebrity. A number of legal theories have been tried, including trademark, copyright, right of publicity, misappropriation of likeness, etc. Nearly all of these claims have failed. A recent decision from the Eastern District of Pennsylvania granted a motion to dismiss on seven of eight counts brought. The sole surviving count relates to a false endorsement claim under the Lanham Act. Leo P made two claims under the Lanham Act, the second being for false designation of origin was dismissed by the court.
Continue Reading Recent Case Law May Open New Celebrity Dance Suits Against Game Publishers

It is very common to defend against a claim of patent infringement by litigating in the district court and the PTAB in parallel. The most straightforward-way for the defendant to win is to persuade the PTAB that the asserted patent is invalid. But, that is becoming more difficult as Director Iancu pushes the PTAB to apply greater scrutiny to petitions in order to address patent owner criticism that the PTAB proceedings are unfair. However, a recent decision disposing of a non-practicing entity’s long-running litigation against Ubisoft highlights how a defendant that ultimately lost on an issue before the PTAB can use the loss to their advantage in district court.
Continue Reading Converting an IPR Loss into a District Court Win

Another lawsuit alleging illegal gambling in a social game has been dismissed.  Over the last year, social gaming mobile applications have come under attack from the Plaintiffs’ bar as gambling in disguise.  Plaintiffs’ attorneys theorize that in-app micro-transactions where consumers pay cash for virtual items (i.e., gold coins or gems) designed to speed up or otherwise enhance gameplay are, in effect, wagers insofar as other in-game materials can subsequently be “won” with those items.  None of the plaintiffs have prevailed in these recent cases.
Continue Reading The Game Goes On: Sheppard Mullin Obtains Dismissal With Prejudice of Class Action Alleging Social Gaming Micro-transactions Constitute Illegal Gambling

Last week’s arrests[1] of Robert Faiella, an alleged seller on online marketplace Silk Road, and Charlie Shrem, the CEO of the startup BitInstant, marked a recent round in a series of law enforcement actions against what the government characterizes as a “rise in criminal activity”[2] by people using the cryptographically-controlled digital currency, Bitcoin.[3]  The arrests of Shrem and Faiella occurred nearly contemporaneously with hearings by the New York Department of Financial Services to determine how to regulate Bitcoin in the State of New York.  More than one source has suggested the timing of the arrests may have cast at least some cloud on the New York hearings on regulation of Bitcoin.
Continue Reading Bitcoins and Liability in the Wake of Recent Silk Road Arrests

Edited by Ben Mulcahy[1]

Creating a new rule that gives videogames much more limited protection than other expressive works, the Ninth Circuit has ruled that realistically depicting college athletes in videogames showing them doing what they became famous for doing—in this case, playing football—is not sufficiently transformative to avoid a state law right of publicity claim. In In re NCAA Student-Athlete Name & Likeness Licensing Litigation (Keller), 2013 WL 3928293 (9th Cir. July 31, 2013), the court held that Keller, a former college athlete prohibited by NCAA rules from commercializing his name and likeness rights, could pursue a right of publicity claim based on the use of his likeness in a football videogame—a work admittedly protected by the First Amendment—despite the game producer’s assertion of First Amendment defenses. This decision, following on the heels of the May 21, 2013 opinion in Hart v. Electronic Arts, Inc., 717 F.3d 141 (3rd Cir. 2013), which was heavily relied on by the Keller decision, as well as its re-interpretation of precedent in the right of publicity area that had up-to-now been considered well-established, are sure to have unintended consequences extending to branded entertainment and other hybrid contexts where brand messages and creative expression combine.


Continue Reading Ninth Circuit Fumbles The Ball In Videogame Likeness Cases

In Thorner v. Sony Computer Entertainment America, LLC (Case No. 2011-1114, Feb. 1, 2012) (Moore*, Rader & Aiken (D. Or. sitting by designation)), the Federal Circuit reiterated the prohibition against importing limitations from the specification and reversed a district court construction depending from consistent uses of the disputed phrase in the specification.

Continue Reading Federal Circuit Narrows Claim Construction Options in Game Controller Suit

In February 2009, the 9th Circuit Court of Appeals struck down California’s Violent Video Games Act banning the sale or rental of "violent video games" to minors. While the holding is squarely in line with substantial U.S. Supreme Court precedent requiring parents — not government censors — to decide what is appropriate content for children, the U.S. Supreme Court just granted review. Mixed in with the legal issues are some of the most troublesome themes for free speech protection — minors, sex and violence. The grant of review is therefore unsettling.
 


Continue Reading Sex, Violence, Videogames and the Supreme Court

On Feb. 20, 2009 the 9th Circuit Court of Appeals struck down a California law banning the sale or rental of “violent video games” to minors and requiring such games to be labeled “18” (the legal age for adults). While this decision may surprise some California lawmakers and parents, its holding is fully consistent with substantial U.S. Supreme Court precedent entitling minors to a signifi cant measure of First Amendment protection, and leaving parents with the duty to supervise “appropriate” content.


Continue Reading A New Game Plan

Activision licensed the Gibson trademark and trade dress in November 2006 in connection with Guitar Hero’s "custom guitar controller peripheral." Activision paid a one-time fixed license fee to cover the term of the license and Gibson agreed to help promote the Guitar Hero product.


Continue Reading Gibson’s Patent Action Against Activision Hits Wrong Chord with Court in “Guitar Hero” Dispute: Summary Judgment Granted

The law governing U.S. software patents sometimes shifts like the ground here in California – a point illustrated by the recent decision of the Court of Appeals for the Federal Circuit (CAFC) in Aristocrat Technologies Australia PTY Ltd. v. International Game Technology, 521  F.3d  1328,  1333 (Fed. Cir. 2008).


Continue Reading Implications of Aristocrat v. IGT for Software Patents