The United States Supreme Court denied certiorari in a widely-publicized right of publicity case and two closely-watched copyright cases during the last week of June.
In the publicity case, Hamilton v. Speight, Lenwood Hamilton, who wrestled professionally as “Hard Rock Hamilton,” sued Microsoft and Epic Games over the alleged use of his ring persona as the character “Cole Train” Cole in the popular video game Gears of War. The suit also named Lester Speight, a former fellow wrestler who voices the character of Cole in the game. The Third Circuit had found the Cole character sufficiently transformative to constitute the protected expression of the game makers and not a mere duplication of the “Hard Rock” Hamilton personality. Hamilton challenged the transformativeness standard, saying that it would allow not only violations of rights of publicity but could also condone faking celebrities’ likenesses in pornography. In denying cert, the Supreme Court lets stand the Circuit Court’s application of the widely-used “transformativeness test” to determine whether a game character is an impermissible use of another person’s likeness or is altered enough to become the game maker’s First Amendment-protected original expression.
In Corbello v. DeVito—which we reported and analyzed in this blog post last September—the Ninth Circuit affirmed a lower court decision that the hit musical Jersey Boys did not infringe materials in a ghost writer’s biography of one of the singers in the group The Four Seasons, whose phenomenal success was chronicled in the musical. The plaintiff, the writer’s widow, argued that sections of dialogue in the play copied original expression of the author of the biography, infringing his copyright. However, the Ninth Circuit found that even though much of the book’s dialogue was fabricated or fictionalized, it was presented as factual biography. Under the "asserted truths" doctrine, even fictionalized description and dialogue is unprotected by copyright if it is held out to the public as fact. The Supreme Court’s decision not to review the case lets stand the Ninth Circuit’s holding and this longstanding concept of “copyright estoppel.”
The Court also let stand the Ninth Circuit’s reversal of a district court ruling in favor of the producer and authors of a “mash up” book, Oh, the Places You’ll Boldly Go!, which used images and rhymes from a popular Dr. Seuss book to derive life lessons from the Star Trek universe. In the case, ComicMix v. Dr. Seuss Enterprises, the lower court had found the book to be a permissible use of the Seuss materials. But the Ninth Circuit’s opinion—which we previously wrote about here—held that the “mash up” was not a parody because it didn’t comment on Dr. Seuss or the original book, and did not sufficiently transform the Seuss materials to be entitled to a defense of copyright fair use.
The Supreme Court’s denial of cert leaves unheard a key question in that case as to whether fair use of copyright is an affirmative defense or merely an absence of infringing conduct. Copyright practitioners and academics continue to debate whether fair use should be treated as a “right of authors” or just a defense to a claim of infringement.