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Video game maker wins IP suit

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Indiana Lawyer Rehearing

U.S. District Judge Jane Magnus-Stinson shot down a lawsuit brought by heirs of bank robber John Dillinger that challenges how his name is used in video games based on the movie “The Godfather.”

Mooresville-based Dillinger LLC filed suit in October 2009, claiming Redwood City, Calif.-based Electronic Arts violated its trademark to the Dillinger name and character by appropriating it without their consent. They claimed the use of Dillinger’s name had no artistic relevance to the Godfather games for Sony Playstation, Microsoft Xbox and Nintendo Wii, and that the depiction misled players into thinking the games had the endorsement of Dillinger.

But Judge Magnus-Stinson disagreed, finding June 15 that the video games are protected under the First Amendment as “literary works.” The judge wrote that the Dillinger name is “quite incidental to the overall story of the game” and not a main selling point. Dillinger, who was killed by FBI agents in a 1934 shootout, was not alive during the period depicted in Francis Ford Coppola’s “The Godfather” films.

“The court cannot simply infer that the Dillinger name confuses the public, let alone that such confusion outweighs First Amendment concerns,” Judge Magnus-Stinson wrote. “All that is challenged here a single text-line used to identify one of many weapons within a visually complex videogame comprised of countless artistic elements.”

The judge also ruled that Dillinger LLC, which owns the trademark for the Depression-era bank robber, cannot challenge the Dillinger name use in the game under Indiana’s Rights of Publicity statute, since the law was enacted long after Dillinger died.

No decision has been made about whether the Dillinger heirs will appeal to the 7th Circuit Court of Appeals, according to attorney Jonathan Polak with Taft Stettinius & Hollister. Local counsel for EA is Bose McKinney & Evans.

IL Nov. 11-24, 2009,  "Using a name"

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  1. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

  2. Seventh Circuit Court Judge Diane Wood has stated in “The Rule of Law in Times of Stress” (2003), “that neither laws nor the procedures used to create or implement them should be secret; and . . . the laws must not be arbitrary.” According to the American Bar Association, Wood’s quote drives home this point: The rule of law also requires that people can expect predictable results from the legal system; this is what Judge Wood implies when she says that “the laws must not be arbitrary.” Predictable results mean that people who act in the same way can expect the law to treat them in the same way. If similar actions do not produce similar legal outcomes, people cannot use the law to guide their actions, and a “rule of law” does not exist.

  3. Linda, I sure hope you are not seeking a law license, for such eighteenth century sentiments could result in your denial in some jurisdictions minting attorneys for our tolerant and inclusive profession.

  4. Mazel Tov to the newlyweds. And to those bakers, photographers, printers, clerks, judges and others who will lose careers and social standing for not saluting the New World (Dis)Order, we can all direct our Two Minutes of Hate as Big Brother asks of us. Progress! Onward!

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