Transformative Use Favored in Sports Video Game Case

By the time in 2011 that the U.S. Supreme Court officially recognized that video games are expressive works under the First Amendment, several federal appeals and district courts had reached the same conclusion. The Supreme Court found California's legislative restrictions on the sale to minors of video games with violent content to be unconstitutional. See, Brown v. Entertainment Merchants Association, 131 S.Ct. 2729 (2011). But in the context of alleged unauthorized uses of an individual's personal indicia, inconsistency ' in how different courts determine whether there are viable claims under state right of publicity laws or for false endorsement or association under the federal Lanham Act ' makes it difficult for attorneys who view content through a First Amendment lens when counseling entertainment production companies.