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California Decision Undercutting Copyright in Video Games

By Barry Werbin

On this stormy wintry day, what better to cheer one up than an odd decision from the CD Cal. In a December 11th decision, the court ruled on a motion to dismiss by EA based on copyright preemption tied to right of publicity claims by college athletes whose avatars appeared in Madden video games. EA argued that the case, which was filed in Cal. state court and then removed, should be dismissed based on the 9th Circuit's decision last April in Maloney v. T3Media, Inc., 853 F.3d 1004 (9th Cir. 2017), holding that state law claims for right of publicity brought by student athletes was preempted under the Copyright Act (the athletes' images did not appear in advertising or marketing materials).

However, rather than granting the motion based on Maloney, this District Court, while agreeing that video games generally were copyrightable (EA held registrations for the subject games), ruled that the changing game play that was controllable by players did not meet the "fixation" test, which seems really bizarre:

Here, game play in the Madden games is dynamic, interactive, variable, and in the hands of the consumer. Plaintiffs contend the avatars allegedly representing their likenesses even have performance characteristics representing plaintiffs' own capabilities in their time as active NFL players. While recordings of actual football games are subject to copyright notwithstanding the independent actions of players during the course of the games, such recordings satisfy the requirement of copyright that the work be "fixed" in a tangible medium of expression. See Dryer v. Nat'l Football League, 814 F.3d 938, 942 (8th Cir. 2016) ("Although courts have recognized that the initial performance of a game is an 'athletic event' outside the subject matter of copyright. . . the Copyright Act specifically includes within its purview fixed recordings of such live performances."); 17 U.S.C. ยง 101. The Madden games, in contrast, allow game play that is not fixed in a tangible medium of expression, and part of plaintiffs' claims is that their identities are reflected in that game play. Thus, Maloney, which involved fixed photographs, does not govern here and the motion to dismiss must be denied. [Emphasis added]

Yes Maloney did involve reproductions of player photographs that could be downloaded by end users. Yet to rule that changing video game screen displays and output are not sufficiently fixed -- when whatever appears on-screen is the direct product of software and is thus limited in the visual iterations that can be displayed -- seems off base.

A copy of the decision is available here: https://dlbjbjzgnk95t.cloudfront.net/0993000/993656/https-ecf-cand-uscourts-gov-doc1-035116175407.pdf

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This page contains a single entry from the blog posted on January 4, 2018 8:34 PM.

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