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Cases involving the use of real people as models for comic-book characters have also reached divergent results. In Winter v.


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DC Comics , 30 Cal. TCI Cablevision, Inc. So, which of these competing standards should be used in the videogame cases? Both Cardtoons and White are pretty clearly limited to parody cases, and Eastwood is pretty clearly limited to false news reports masquerading as true despite the Hoffman departure.

Both Hart and Keller rejected application of the Rogers test. However, both courts also indicated that the Rogers standard should continue to be applied to false endorsement cases brought under the Lanham Act. Indeed, the Ninth Circuit so held in a companion case brought by former professional football player Jim Brown, in which the state-law right of publicity claims were dismissed for lack of diversity jurisdiction after the federal Lanham Act claim was decided.

This double standard makes little sense. Serving the public interest by protecting against consumer confusion should be a stronger, more compelling government interest than protecting the purely private interest of the celebrity, yet both courts would apply a much more speech-protective First Amendment standard in cases involving the former interest than in cases involving the latter. Moreover, in Rogers itself, the Second Circuit applied a nearly-identical analysis to the right of publicity claim as it did to the Lanham Act claim.

Acuff-Rose Music , the U.

Sports publicity : a practical approach / Joseph Favorito.

Activision Publishing , Cal. A further question is: of what significance it is that avatars can be altered by the users? This fact potentially distinguishes Hart and Keller from No Doubt , in which the court specifically noted that the avatars could not be altered. Nonetheless, the Hart court held that the ability to alter avatars was not material, because the realism associated with real players was an important factor in getting consumers to buy the product.

The Eight Circuit has already held that the use of such publicly available information in providing commercial fantasy sports products to the public is protected by the First Amendment. The only difference between using statistics to run a fantasy football game and using statistics to run a fantasy football videogame is the visual element. Essentially, the court holds that the visual element — the depiction of a body type similar to a celebrity, imitating the celebrity — is enough to take the game out of realm of fully protected speech and to put it into the same category with plastic action figures, coffee mugs, and other celebrity merchandise.

See, e. Spelling-Goldberg Prods.

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Time Warner Entertainment Co. But the fact that courts cannot yet articulate a consistent First Amendment standard that distinguishes between the literal depiction of a celebrity in a sports-simulation videogame and the literal depiction of a celebrity in a more traditional work of entertainment strongly suggests that courts simply do not place the same value on the videogame medium as they do on more traditional media.

For a extensive rebuttal to this apparent discrimination, see William K. Although there was a split at the district court level, the fact that both the Third Circuit and the Ninth Circuit reached the same result, using almost the same reasoning, significantly decreases the likelihood that the U. Supreme Court will grant review.

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That possibility is further diminished by the procedural posture of the Keller case: the Supreme Court prefers to review final judgments, rather than intermediate rulings in cases in which significant court proceedings are still to come. EA would be better off filing a petition for rehearing en banc in the Keller case. It has already filed such a petition in Hart. Only two Ninth Circuit judges voted in the Keller case, and they split on the result. The deciding vote was cast by a Senior U. District Judge from the Western District of Michigan, sitting by designation. Used books may not contain supplements such as access codes, CDs, etc.


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Brand new Book. In this fully revised and updated edition of his groundbreaking guide to communications in sports, Joe Favorito introduces the skills, knowledge and techniques needed to become a successful communicator. Drawing on nearly thirty years of professional experience, including work with the International Baseball Federation, New York Knicks, Philadelphia 76ers, Bloomberg Sports and the Joe Favorito.

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