Intellectual Property
Brown v. Electronic Arts, Inc., 724 F.3d 1235 (2d Cir. 2013)
Study notes for Brown v. Electronic Arts, Inc.: professor notes, cold call prep, exam angles, and memory aids.
Depictions in video games can be protected speech under the First Amendment, particularly when they exhibit transformative qualities.
In Brown v. Electronic Arts, the Second Circuit grappled with the tension between the First Amendment and the right of publicity. The court emphasized that creative works, like video games, involve artistic expression that is entitled to constitutional protection. As such, even though Jim Brown's likeness was used, the manner of its representation within the context of a video game fell under the umbrella of protected speech, indicating that the right to create artistic and expressive works must not be unduly hindered by publicity rights. Professors might highlight this decision as a pivotal reference in evaluating the balance between individual rights and free expression in the digital age.
Furthermore, the ruling indicates a broader principle of how likeness usage in commercial media may often be considered transformative when it does not merely replicate the subject's image but instead incorporates it as part of a larger expressiveness within the narrative of the game. The professors might encourage students to explore implications this ruling has on future cases involving the use of likenesses, especially in evolving mediums like virtual reality and augmented environments.
Think of 'Video Game = Expression' to remember the ruling's leaning towards artistic expression.
| Case | Distinction |
|---|---|
| Gordon v. Drape Creative, Inc. | Gordon involved the commercial appropriation of a right of publicity without any transformative commentary, leading to a different outcome than in Brown. |
| Ethell v. Sony Computer Entertainment America, Inc. | Ethell's focus was on the unauthorized use of a name that lacked transformative context, contrasting with the artistic representation seen in Brown. |
| Rogers v. Grimaldi | Rogers involves the use of a person's name in the title of a creative work, where the balancing of artistic freedom and the right of publicity was navigated differently than in Brown. |
The decision supports the principle of free expression in artistic mediums, allowing creators the liberty to represent public figures in contexts that do not solely seek commercial benefit.
Opponents argue that expanding protection for video games may undermine individual rights by reducing incentives for consent and fair compensation for the use of personal likenesses.
This case often appears on exams as an example of how the First Amendment intersects with publicity rights. Students may be asked to analyze why the court prioritized free expression over the plaintiff's publicity concerns.