Many of you may be familiar with the pop hit “Blurred Lines” by Robin Thicke, Clifford Harris, more popularly known as T.I., and Pharrell Williams (the “Composers”). If it does not sound familiar by title, perhaps you may recall it for its controversial nudity laden music video, or the fact that it was the song performed by Thicke and Miley Cyrus at the MTV Video Music Awards in 2013 when Miley’s scandalous conduct went viral and shocked the world—including Thicke’s spouse. However, what you may be less familiar with is the fact that the heirs of Motown great Marvin Gaye (the “Heirs”) have been threatening to sue the Composers since at least early 2013. The Heirs claim that “Blurred Lines” infringes their copyright in the Marvin Gaye song “Got to Give it Up.” However, in August 2013, after months of discussion on the issue, the Composers opted to file an action for declaratory relief in the United States District Court for the Central District of California, seeking a judgment that “Blurred Lines” does not infringe “Got to Give it Up.” The justification there was likely that sometimes the best defense is a strong offense. The Heirs then filed a counterclaim for copyright infringement alleging that “Blurred” Lines” does in fact infringe “Got to Give it Up” and also that another song by Robin Thicke and Paula Patton—“Love After War”—infringes Marvin Gaye’s song “After the Dance.” The trial on this matter began on February 24, 2015 and is currently ongoing.
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IP in the NFL: “I’m Just Here So I Won’t Get Fined,” or Are You?
Just last week, on February 18, 2015, Seattle Seahawks superstar running back Marshawn Lynch (“Lynch”), also known as Beast Mode, filed for a federal trademark with the United States Patent and Trademark Office (“USPTO”) for his now famous quote—“I’M JUST HERE SO I WON’T GET FINED.” For those of you who are not big NFL fans, Lynch coined his now signature phrase during the Super Bowl XLIX Media Day. This did not come as a huge shock to most NFL fans because Lynch has developed a reputation for avoiding the media and refusing to fulfill the media obligations of one of the league’s brightest superstars. However, in the face of the NFL’s threat of a $50,000 fine if he refused to participate in Super Bowl XLIX Media Day, Lynch decided to play ball. In response to over 20 proffered questions, Lynch simply responded, “I’m just here so I won’t get fined.”
This caused quite the outrage from the media and certain sports fans—mostly 49er fans (we all know how they adore the Seahawks), who found Lynch’s conduct unprofessional and disrespectful. But, say what you will about Lynch’s unprofessional conduct and disregard for his obligations as an NFL superstar, the fact is the man knows how to exploit and protect his own intellectual property.
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Congress is Reconsidering “Anti Troll” Legislation
On February 5, 2015, Congressman Bob Goodlatte reintroduced the “Innovation Act”; a bill designed to implement several changes to the legal framework governing United States patent law. The law is designed to make it more difficult for non-practicing entities (also known as “patent trolls”) to maintain patent infringement lawsuits. The law appears to have significant support among both houses of Congress, and may soon become law.
If passed, the Innovation Act purportedly will create several disincentives aimed at increasing the risk faced by non-practicing entities when bringing patent infringement lawsuits. First, the Innovation Act would require non-practicing entities to meet a heightened pleading requirement. Non-practicing entities would be required to plead “with detailed specificity” how the accused products allegedly infringed their patents. Additionally, the Innovation Act contains a fee-shifting provision which would allow the court to award attorneys’ fees to the prevailing party. This provision was included in the Act to address the fact that most lawsuits brought by non-practicing entities are settled by the accused party because the defense costs and legal fees associated with defending patent infringement cases often run into the millions of dollars.
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Davis: Electronic Arts Gets a New Set of Downs and Still Can’t Score
Just over a month ago I wrote about the Davis v. Electronic Arts matter that was pending before the Ninth Circuit Court of Appeal. Specifically, I opined that the matter was ripe for Supreme Court review in light of the circuit split that is developing with respect to the misappropriation of likeness in video games. In my last blog, I explained that a number of legal scholars, and myself, believed that Electronic Arts had absolutely no chance of prevailing in Davis in light of an identical case that Electronic Arts lost at the trial level and on appeal (Keller v. Electronic Arts) wherein NCAA college football players brought a similar claim for the use of their likeness in the Electronic Arts video game franchise NCAA Football. The matter was submitted to the Ninth Circuit on September 11, 2014, and the Ninth Circuit issued its opinion on January 6, 2015.
In the Davis v. Electronic Arts opinion (Case No. 12-15737), the Ninth Circuit rejected the legal razzle dazzle (pardon the football expression) raised by Electronic Arts and upheld the denial of Electronic Arts’ motion to strike the case as a strategic lawsuit against public participation (SLAPP). Specifically, the Ninth Circuit rejected the argument that the use of the former players’ likeness was protected under the First Amendment as “incidental use.” The Court disagreed with Electronic Arts’ characterization of the role of the former players’ likeness in the video game because it was central to Electronic Arts’ main commercial purpose: to create a realistic virtual simulation of football games involving current and former NFL teams. Electronic Arts acknowledged that the likeness of the current NFL players carries substantial commercial value and failed to offer a meaningful distinction with respect to the former NFL players. Instead, it argued that there are thousands of players in the video game and accordingly, any individual player’s likeness has only “de minimis commercial value.” However, the Court refused to accept this highly technical argument and instead found “no basis for such a sweeping statement.”
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Electronic Arts and its Disrespect for the Game
On September 11, 2014, the Ninth Circuit heard oral argument on the appeal in Davis v. Electronic Arts (Case No. 12-15737), a class action lawsuit brought by three former NFL Players against Electronic Arts (“EA”), the publisher of the renowned Madden NFL Games. Michael Davis, Vince Ferragamo, and Billy Joe Dupree claimed that EA violated their right of publicity by using their likeness and the likeness of six thousand other similarly situated former NFL players without permission. The Ninth Circuit has yet to issue its ruling on the appeal, but most legal scholars agree that EA has almost no chance of prevailing on the issue in light of the Ninth Circuit’s holding in Keller v. Electronic Arts (Case No. 10-15387) where the Ninth Circuit found that EA unlawfully utilized the images of collegiate athletes in its NCAA Football game series.
Interestingly, EA put forth the same argument in Davis as it did in Keller. Specifically, EA argued that its portrayal of the class members is protected by the First Amendment under the doctrine of transformative use, which analyzes whether the challenged work or product contains significant transformative elements (or value that) does not derive primarily from the celebrity’s fame.
At the oral argument, counsel for EA cited to a footnote in the Keller decision wherein the court reserved the “question of whether the First Amendment furnishes a defense other than those the parties raise.” EA argued that the footnote provided the court with the wiggle room it needed to come to a different conclusion than it did in Keller. EA urged that the court prescribe a second standard for the use of likeness in books, films, and video games. Specifically, EA argued that the extensive labor and detail involved in making a video game should almost guarantee that the product is entitled to First Amendment protection as an expressive work. Judge Marsha S. Berzon was not very receptive to this argument and remarked that the creation of a video game sounded more like a compilation of data than an expressive work. EA responded that a great deal of creative expression is embodied in that compilation. Whether the Court accepts EA’s position remains to be seen.
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