Everyone knows that court action begins with a trial, or, at least, the threat of one. A trial litigates both factual and legal issues like, “Was the light green?” or “Was the police officer’s search unconstitutional?” Thus, the purpose of a trial is (1) to determine what happened and (2) to determine if what happened makes a defendant liable for damages or subject to some other kind of court remedy, like an injunction. A civil trial might end in an award of monetary damages, or even an order to stop certain behavior, and a court judgment embodying those remedies. A criminal trial, likewise, could end with large fines, jail time, and an adjudication of guilt that can negatively impact employment prospects and even negatively impact certain civil rights, like the ability to vote and possess a firearm.
What is a person to do in the face of such consequences? Appeal.
The Ninth Circuit Court of Appeals (sitting in San Francisco) has opened the door to college athletes’ challenges to the use of their images in popular sports video games. Former college football quarterback Sam Keller scored a victory in his claim against Electronic Arts, Inc., maker of the popular Madden NFL and NCAA Football video games, over the use of his jersey number and general appearance on one of its game avatars. The appellate court held that the video game manufacturer was not protected by the First Amendment against the athlete’s right-of-publicity claim absent a transformation of the avatar beyond a mere celebrity likeness or imitation of Keller, which it did not do. Allowing Keller’s suit to go forward, the court found that the video game did not qualify for protection as a “transformative use” because it “literally recreates Keller in the very setting in which he has achieved renown,” rather than creating some protectable new art of its own. The court found that Keller was represented as “what he was: the starting quarterback for Arizona State” and Nebraska and that “the game’s setting is identical to where the public found [Keller] during his collegiate career: on the football field.” As such, any expressive elements of the game were subordinated to the overall goal of portraying an actual celebrity likeness of Keller, thereby commercially exploiting his popularity and fame.
Who among us hasn’t experienced that recurring moment of frustration when signing onto a new online service and that dreaded little window opens, allowing you to read the numerous pages of terms and conditions of use at a generous clip of only 4 to 5 lines at a time? And who among us hasn’t started to read them, only to scan and scroll progressively faster until reaching the bottom, as if the really egregious terms might appear in bold red type that you easily will spot while speeding by? How about that palpable recipe of consternation, doubt and despair that sets in as you hover over the “I Agree” button that unlocks the door to an exciting new online world to which you absolutely must have access in order to share the latest video of your cat chasing that red light up the wall?
Midnight in Paris is a recent film by Woody Allen and Sony Pictures featuring Owen Wilson as a likable screenwriter and would-be-novelist in search of a muse. On a vacation to Paris, he finds just that muse—actually, many of them—when strolling the streets at midnight. Wilson’s character is transported back in time, first to the 1920s, then the 1890s, where he socializes with the likes of F. Scott Fitzgerald, Gertrude Stein, Hemingway and others. Escaping his fiancée and friends, Wilson’s character takes to the streets each night, mythically teleporting back to the bygone eras in which he finds new life. During one mid-day colloquy with his fiancée’s friend, he invokes his experience with the ghosts of the past and exclaims, “The past is not dead. Actually, it’s not even past. You know who said that? Faulkner, and he was right. And I met him too. I ran into him at a dinner party.”