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First Page

425

Last Page

496

Document Type

Article

Abstract

In 2013 and 2015, the Ninth Circuit decided two nearly identical cases in which professional football players alleged a video game publisher used their likenesses without authorization in a game that simulates real football games. One plaintiff brought a false endorsement claim under the Lanham Act, while others brought state law right of publicity claims. That made all the difference. The Ninth Circuit found the First Amendment protected the game against the false endorsement claim, but not against the right of publicity claims. These contradictory results stem from court’s application of the Rogers v. Grimaldi test to Lanham Act claims and the transformative use test to right of publicity claims. A review of both lines of precedent in the video game context and a comparison of the cases with each other and to cases involving traditional forms of expressive works reveal two problems that must be addressed. First, many courts fail to view video games as expressive works equal to books, television shows, and films, and instead view them as products and merchandise like lithographs and t-shirts. Second, the transformative use test suffers from subjectivity and fails to properly recognize First Amendment protection over video games aiming for realism. This article proposes resolving both problems by applying the Rogers test to both Lanham Act and right of publicity claims.

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