United States District Court, Southern District of Indiana
Case No. 09-cv-01236, Filed October 1, 2009
Some time ago we wrote about Dillinger, L.L.C. ( a company that claims to own the rights of publicity and trademark to the names and nicknames of the late Depression Era bandit, John Dillinger) filing suit against Electronic Arts over its use of the “Dillinger” name in its “Godfather” line of video games. On June 15, 2011, the district court judge ruled that the plaintiffs could not bring state law right of publicity claims. On June 16, the court granted summary judgment to EA on Dillinger’s trademark claims, effectively handing EA a total victory in the case.
John Dillinger, according to the court order, was a notorious Indiana gangster who terrorized the Midwest for several years, until he was gunned down by the F.B.I. in a Chicago firefight, in 1934. Under a relatively recent Indiana statute, which recognized a descendible right of publicity, plaintiffs claimed the right to control Dillinger’s “personality” rights for commercial purposes. The court found however, that Indiana’s Right of Publicity Statute does not apply to persons who died before the enactment of the statute, and that videogames also fall under the “literary works” exception to the statute.
As regards the trademark infringement claims, the court found that EA had an affirmative fair use defense under the First Amendment. Plaintiff tried to argue that use of the Dillinger name had no artistic relevance to the video game, and so could not be eligible for First Amendment trademark protection under Rogers v. Grimaldi, 875 F.2d 994 (2nd. Cir. 1989). The court found, however, that EA’s use of the Dillinger name was protected under Rogers because it did have some artistic relevance to the game, and it did not explicitly mislead the public as to the source or content of the work. Dillinger, LLC plans to appeal the ruling.
Dillinger, L.L.C., a company that claims to own the rights of publicity and trademark to the names and nicknames of the late Depression Era bandit, John Dillinger, has filed suit against Electronic Arts over its use of the “Dillinger” name in its “Godfather” line of video games.
In the suit, Dillinger takes issue with EA’s use of the name “Dillinger” for several weapon upgrades that were offered in the Godfather and Godfather II video games. The complaint names two examples: the “Dillinger Level Three Tommy Gun” from the first Godfather game, and the “Modern Dillinger Level Four Tommy Gun” from the Godfather II game. The complaint refers to the former as a “swift and gruesome killing machine,” and having played those games, this author can confirm that the guns were indeed swift and gruesome.
Dillinger filed suit in Indiana, and the complaint charges EA with various counts, including alleged violations of Indiana’s Publicity Statute; federal, state and common law trademark law; state unfair competition law; and even includes claims for “Criminal Mischief,” “Conversion” and “Deception” under the Indiana Crime Victims Act. Dillinger seeks monetary damages and injunctive relief, and here’s hoping they resolve this before Valentine’s Day.
The case is Dillinger, L.L.C. v. Electronic Arts, Inc., No. 1:09-cv-1236 (S.D. Ind., filed Oct. 1, 2009), and we’ll keep you posted as we learn more.