A District Court in Indiana recently granted a summary judgment motion in a case against Electronic Arts, a popular video game manufacturer. The case was brought by Dillinger LLC, the owners of two trademarks for "John Dillinger." In the complaint, Dillinger LLC claimed to own the publicity rights to late mobster John Dillinger under Indiana's right of publicity statute enacted in 1994. The company alleged EA violated Dillinger's publicity rights under the statute when it included references to John Dillinger in its popular video game series based upon The Godfather. In granting EA's motion for summary judgment, the Court held Indiana's right of publicity statute does not apply to personalities who died prior to its enactment in 1994. Additionally, the Court went on to conclude that video games fell under an exemption in the statute for "literary works." It determined a broad definition of "literary works" was necessary to avoid First Amendment considerations because "video games have just as much protection under the First Amendment as does 'highbrow literature.'"
TIP: While the Indiana right of publicity statute does not apply to persons who died prior to 1994, this is not the case in all states, so use of a deceased celebrity without permission from the celebrity's estate must be reviewed on a case-by-case basis. Moreover, commercial ads are not likely to enjoy First Amendment rights as broad as those granted video games in this case.