Video Game Studios: Be Mindful of What You Say at E3

No Man’s Sky is an action-adventure survival video game in which a player is free to explore an uncharted universe comprised of 18 quintillion planets, nearly each one unique with procedurally generated terrain, flora, and fauna.[1] The game, published by Hello Games (HG) and distributed by Sony Interactive Entertainment America (SIEA), has been widely reviewed since its release in August, receiving such praises as “magnificent,” “unprecedented,” “incredible,” and “an experience unlike anything a game has ever delivered, or one that we’re ever likely to see again.”[2] With such rave reviews, it may be surprising to learn that within weeks of its release, many disappointed customers returned the game and sought refunds for digital copies.[3]

Following NMS’s release, outraged consumers and reviewers in the U.S. immediately commenced discussion in public forums regarding potential false advertising claims against HG and SIEA.[4] In the U.K., the Advertising Standards Agency received actual complaints from citizens since NMS’s release and finally responded to these claims in October by commencing an investigation into HG.[5] So, why would consumers file suits against HG and SIEA over an “incredible” and “unprecedented” product? The answer may lie in a 2014 press conference at E3.

The Electronic Entertainment Expo, known as E3, held in Los Angeles each year.

The Electronic Entertainment Expo, known as “E3,” is an annual trade fair held by the Entertainment Software Association, open only to those connected to the video game industry and members of the press. Video game developers attend E3 to showcase the most anticipated and groundbreaking announcements for upcoming games and hardware, as it is easily the most important show in the industry. By building up hype at E3, many video game titles and products can later gain, not only a following, but also dedicated customers by means of pre-orders up until their release dates.  In this sense, products are often sold, both literally and figuratively, months or years before they hit store shelves or digital download servers. Further, larger production and marketing budgets have necessitated reaching broader audiences. To garner the attention of that audience, marketing messaging lead times have grown increasingly longer in order to build the necessary hype to stand out in the crowded marketplace. To that end, developers and publishers have turned to making promises of features and key selling points of their products throughout production. These promises can and have sometimes led to legal disputes.

In the summer of 2014, SIEA (then, Sony Computer Entertainment America) and HG announced NMS by screening a gameplay trailer and holding a press release at E3, where their woes may have began.[6] As the name suggests, gameplay trailers are often purported to display actual gameplay footage—what users are likely to see and hear during their experiences playing a game. Consumers and critics allege that the NMS trailer shown at E3, which supposedly showcased a world which was procedurally-generated live at the event, had actually been manufactured beforehand.[7] A polished and artificial demonstration is not new to video game consumers. When attempting to demonstrate aspects that are allegedly randomized or otherwise unpredictable, however, it contradicts the entire nature of the presentation when a developer uses pre-built segments of the game. This deception was one of consumers’ initial criticisms.

At E3 and thereafter, a spokesman for HG continued to publicly describe captivating features of NMS that have since been found to be absent or incorrectly described. For example, developers described a multiplayer experience in a universe so vast that players were unlikely to encounter one another by chance. However, players testing this theory discovered that they were unable to meet at all.[8] In fact, after the release of the game, consumers in Europe had discovered that the multiplayer designation icon on NMS packaging had been covered with stickers—in essence, removed.[9] Since its release, NMS players have identified over forty-three instances of undelivered features, complete with links to the sources of each claim.[10]

A sticker removed from No Man Sky's packaging, covering the game's multiplayer designation.
A sticker removed from No Man Sky’s packaging, covering the game’s multiplayer designation.

Though no one has yet brought forth a claim in the U.S. against HG or SIEA for NMS advertisements, consumers in the past have already done so under similar circumstances.

False Advertising Claims Against Video Game Companies

Ladore v. Sony Computer Entertainment America, LLC.[11]

In 2014, plaintiff Douglas Ladore, purchaser of the game Killzone: Shadow Fall, brought a class action suit against Sony Computer Entertainment America, alleging fraudulent or misleading representations of in-game multiplayer graphics. Killzone was advertised to render graphics in native 1080p in both single and multiplayer modes of gameplay (one such advertisement included a gameplay trailer at E3).[12] Though it displayed in 1080p in both modes, the engine only rendered individual frames in 1080p in the single player mode. In multiplayer mode, however, developers used methods such as interpolation[13] to make it appear that the resolution was the same. Ladore alleged that Killzone’s actual multiplayer graphics did not measure up to marketing claims and that, having been exposed to such claims and reading the same claims on the product’s packaging, he had relied on them in his decision to make the purchase. He alleged that, if not for those claims and the accompanying packaging, he would not have purchased Killzone or would otherwise have paid less for it.

Sony filed to dismiss the case under F.R.C.P. 12(b)(6), for failure to state a claim, which the court refused. Ladore’s claim met requirements for a false advertising claim;[14] however, the court found that it failed to allege a non-economic loss suffered, as is required under California’s economic loss rule.[15] The case was settled in May 2015.

Perrine v. Sega of America, Inc.[16]

Two named plaintiffs sought a class action certification to represent consumers who pre-ordered Aliens: Colonial Marines (ACM) against Sega and Gearbox. As with issues related to NMS, these claims were in relation to allegedly misleading demo versions of ACM presented at E3 in 2011. Plaintiffs alleged that Sega and Gearbox developed an advanced version of the game that was non-retail and presented to consumers as actual gameplay. This version, they alleged, implemented use of artificial intelligence and a game engine than in the delivered product itself.

Sega negotiated a $1.25 million settlement with Perrine and Locke that is contingent on the court’s grant of class certification for the plaintiff. Meanwhile, Gearbox moved for dismissal. The court found too many complications in the complaint to grant class certification, including the fact that plaintiffs could not determine exactly which advertisements purported “actual gameplay,” and that it would be too difficult to identify consumers who had been deceived by the advertisements. Plaintiffs agreed to dismiss Gearbox with prejudice, while Sega’s potential settlement remains tentative.[17]

McMahon v. Take-Two Interactive Software, Inc.[18]

Take-Two Interactive Software, Inc. and Rockstar Games, Inc. faced legal action for advertisements and packaging for Grand Theft Auto V (GTAV), which announced that the game would feature extensive multiplayer features. These features, however, were unavailable for several weeks following the game’s release date.[19] Due to this discrepancy, the plaintiffs McMahon and Bengston brought forth a class action lawsuit, asserted under California’s Unfair Competition Law and False Advertising Law. The district court dismissed the suit, finding that the defendants never claimed the online features would be available immediately to all users and that consumers suffered no substantial loss. The appellate court reversed and remanded the decision, finding instead that the advertising claimed it would potentially be unavailable to some users, when it was not actually available to any users at all. They noted that, “The district court erred by failing to construe plaintiffs’ allegations that these representations were misleading in the light most favorable to plaintiffs.”[20] The plaintiffs may now file an amended complaint.

What Does This Mean for Video Game Producers?

 Implications for Future Litigation

Several cases like these have been brought forth against multiple video game companies both in the U.S. and abroad.[21] Often, as is demonstrated by those discussed above, if such cases are not dismissed by the court they are dismissed by the parties themselves and settled outside of court. Though such settlements may rob future litigators of precedent, these cases provide guidance by highlighting several considerations for future litigation. First, as seen in Ladore, claims under tort law are likely to fail due to the California economic loss rule. Second, judges in Perrine and McMahon commented on complications related to class certification—it is difficult to identify the classes of consumers who have been duped by specific advertisements. Incidentally, this may be the case with NMS,[22] as the court arguably cannot identify which users’ purchasing decisions were influenced by their ability to find one planet amongst 18 quintillion in the NMS universe featuring details showcased in advertisements. In addition, whether video games can be considered a “good” under the Consumers Legal Remedies Act is up for debate, as it was in both Perrine and McMahon.

Video Game Companies’ Unique Relationships with Consumers

Companies in the video game industry do something that is virtually undone in any other industry: throughout the production cycle, they share explicit details with consumers on dozens of aspects of an unreleased product. Such details can include gameplay modes, plot, art, actual gameplay footage, technological specifications and potential technological advances. This inside look generates the type of excitement and loyalty that can garner record-breaking profits.[23] However, because of the nature of these products—their existence within the realm of both art and technology, which require creativity and innovation with unpredictable results—unexpected changes to the product invariably must occur. Video game consumers are used to polished trailers, dropped features during production, and delayed releases; however, “the culture of truth-bending gets worse with every successive E3,”[24] giving rise to dissatisfaction. This, combined with the pre-order culture associated with gaming, places these companies in a precarious position in regards to false advertising.

While the legitimacy of such claims is up for debate, prominent lawyers who specialize in legal issues related to video games such as Ryan Morrison and Stephen McArthur, warn that “the biggest impact here will be that it sends a message to other game companies to be careful about what they put in their trailers and not to oversell their games with unrealistic ‘gameplay footage.’”[25]

 Heeding the Warning

Since the onslaught of consumer backlash, HG, SIEA, and Steam have taken steps to alleviate the situation with NMS. Such measures include: providing refunds, even to those who have downloaded the game digitally and have played over 50 hours, changing packaging, and revising the game description on the Steam online store. It is unclear whether this will be enough to counteract the damage and dissuade consumers from bringing forth claims in the US.

Regardless of what occurs in regards to McMahon, Perrine, and No Man’s Sky, the message is clear. Video game developers: Be careful what you promise, especially at E3.


Vida Djaghouri is a second-year law student at Benjamin N. Cardozo School of Law and a Staff Editor of the Cardozo Arts & Entertainment Law Journal. She is an active member of the community, serving as president of both the American Constitution Society and Cardozo’s Law and Internet Club. Her focus is on intellectual property and privacy and data law issues. Vida is an avid gamer and is particularly interested in legal issues related to the industry.





[1] No Man’s Sky Website.

[2] Reviews for No Man’s Sky. Metacritic.

[3] Erik Kain. No, Getting A ‘No Man’s Sky’ Refund Doesn’t Make You A ‘Thief.’ Forbes. Sept. 1 2016,

[4] No Man’s Sky Discussion Board. Steam Community.

[5] Amanda Hudgins. No Man’s Sky and the Trickiness of Advertising a Procedurally-Generated Game. Killscreen. Oct. 04, 2016.

[6] No Man’s Sky Gameplay Trailer | E3 2014 | PS4. YouTube.

[7] Shane Corfield. Hype, False Advertising, and Refunds: A Look at the No Man’s Sky Controversy. Aug. 28, 2016. Informed Pixel.

[8] Tom Marks. Two No Man’s Sky players manage to meet, but apparently can’t see each other. PC Gamer. Aug. 09, 2016

[9] Graham Smith. No Man’s Sky Limited Edition Boxes Have Sticker Covering “Online Play” Icon. Aug. 11, 2016. Rock Paper Shotgun.

[10] Reddit user “Cymen90.” Where’s the No Man’s Sky we were sold on? A BIG list of things that are missing with sources, links and quotes. Also, dubious advertisement (x-post from r/nomansskythegame). Sept. 2016. Reddit.

[11] Ladore v. Sony Computer Entm’t Am., LLC, 75 F. Supp. 3d 1065 (N.D. Cal. 2014)

[12] A more technical discussion of the distinctions between rendering and display resolutions within the context of this case:

[13] Definition of interpolation: In computer graphics, it is the creation of new values that lie between known values. For example, when objects are rasterized into two-dimensional images from their corner points (vertices), all the pixels between those points are filled in by an interpolation algorithm, which determines their color and other attributes (see graphics pipeline). Another example is when a video image in a low resolution is upscaled to display on a monitor with a higher resolution, the missing lines are created by interpolation. In a digital camera, the optical zoom is based on the physical lenses, but the digital zoom is accomplished by algorithms (see interpolated resolution). From:

[14] 15 U.S.C. § 1125

[15] Seely v. White Motor Co., 63 Cal. 2d 9, 403 P.2d 145 (1965). “In actions for negligence, manufacturer’s liability is limited to damages for physical injuries and there is no recovery for economic loss alone.”

[16] Perrine v. Sega of Am., Inc., No. C 13-01962 JSW, 2013 WL 6328489 (N.D. Cal. Oct. 3, 2013)

[17] This settlement remains tentative as of June, 2015.

[18] McMahon v. Take-Two Interactive Software, Inc., 640 F. App’x 669, 671 (9th Cir. 2016)

[19] Anne Bucher. Grand Theft Auto False Advertising Class Action Revived By 9th Circ. Feb. 29, 2016. Top Class Actions.

[20] See McMahon

[21] See In re: Nvidia GTX 970 Graphics Chip Litigation, Case No. 4:15-cv-00760, in the U.S. District Court for the Northern District of California. See also Branden DORRANCE individually and on behalf of all other similary situated, Plaitntiff, v. ELECTRONIC ARTS, INC. A Delaware Corporation and Sony Computer Entertment America, Lc, a Delaware Limited Liability Company, Defendants., 2011 WL 6433339 (Cal.Superior). Complaint filed in 2011 for false advertising claim related to Battlefield 3. For background on this filing, see: See also (UK examples) Wolfenstein: The New Order. Dungeon Keeper:

[22] Matt Sayer. We talk to lawyers about the No Man’s Sky false advertising investigation. Oct. 2016. PC Gamer.

[23] Grand Theft Auto V broke the record for profits on the release date of any game, earning over $1 billion within 3 days of release.

[24] Brendan Caldwell. Hype Check: Debunking E3’s Marketing. June 15, 2016. Rock Paper Shotgun.

[25] Matt Sayer. We talk to lawyers about the No Man’s Sky false advertising investigation. Oct. 2016. PC Gamer.

Free Speech Implications of Apple’s Patent for Infrared Tech That Can Remotely Disable Video and Photo Recording

Apple is accustomed to being a controversial pioneer in the tech world. Yet, a patent it was recently awarded is garnering more than the usual interest, and not for positive reasons. The patent entitled “[s]ystems and methods for receiving infrared data with a camera designed to detect images based on visible light,”[1] essentially discloses a method for a smartphone’s camera to receive data over infrared waves that could alter the functionality of an iPhone.[2] The patent drawing sheets suggest that the technology be used to disable photography and video capture at live concerts and theater events.[3] A theater or concert venue wishing to employ the technology can be equipped with an infrared transmitter which can emit an infrared signal instructing individual iPhones in the premises to disable video recording capabilities.[4] At a first glance, this technology appears to be only a step from technology currently used to curtail bootlegging at live events, such as requiring patrons to place their cellphones in a pouch that prevents the phone from recording.[5] However, commentators instantly suspected that this technology was different, prompting some to ask whether the technology could eventually be used by the federal government or the police to block photo and video recording at a political protest or another sensitive event, making recording of these events impossible.[6] The use of the newly patented technology in this manner has the potential to affect our First Amendment right to free speech, while simultaneously affecting copyright law. However, a prospective litigant attempting to challenge the use of the technology on First Amendment grounds would face numerous challenges.

In order to satisfy the Article III’s “Cases” and “Controversies” requirement, a litigant must demonstrate that they have standing to sue.[7] To establish Article III standing, an injury must be “concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.”[8] Courts also recognize doctrines of mootness, ripeness, and political question as prudential limitations on Article III standing.[9] In Clapper v. Amnesty International, Amnesty International challenged a law that permitted federal government officials to acquire foreign intelligence information by intercepting communications between US citizens and those in foreign countries.[10] The plaintiffs alleged that their work engaged them in sensitive international communications with individuals who they believe are likely targets of surveillance, which in turn had a chilling effect on their communications.[11] The Supreme Court held that the plaintiffs’ claims were too speculative and that allegations of future injury are insufficient to establish an injury in fact.[12] A plaintiff attempting to bring a case challenging the government’s use of the new technology at this time would lack standing for the same reasons that the plaintiffs in Clapper lacked standing, allegations of potential future injury are insufficient for purposes of Article III standing.[13]

Additionally, the prudential limitation of ripeness would remove standing in any case brought at this time. A case is not ripe if the dispute is insufficiently developed and is instead too remote or speculative to warrant judicial action.[14] In Laird v. Tatum, the United States Supreme Court dismissed for lack of ripeness a claim in which the plaintiff accused the U.S. Army of alleged unlawful “surveillance of lawful civilian political activity.”[15] The Court determined that the plaintiffs’ claims of a “chilling effect” on the exercise of their First Amendment rights rested on fear of future punitive action based on results of surveillance and the “speculative apprehensiveness” that the army may misuse the information in a way that would directly harm the plaintiffs and did not amount to objective current harm.[16]

Although the federal government and its agents do not have access to the technology at this point, it is easy to imagine a hypothetical scenario in which an officer of the federal government utilizes the infrared technology to prevent iPhones from recording at a sensitive event. However, even if this scenario existed, a court would dismiss a suit challenging the government policy preventing iPhones from recording, as it “leave[s] open ample alternative channels for communication of the information” as required by the First Amendment.[17] Though some iPhone users may not see other smartphones as reasonable alternatives to an iPhone, the fact is that other smartphones are capable of recording videos and taking pictures. As long as the infrared technology’s reach is limited to iPhones, consumers may avoid a conflict by purchasing another brand of smartphone. Moreover, the traditional media news networks provide yet another reasonable alternative. While Apple’s newly patented technology capable of preventing iPhones from recording video is certainly troubling, its use does not violate the First Amendment.

David Forrest is a second-year law student at Benjamin N. Cardozo School of Law and a Staff Editor of the Cardozo Arts & Entertainment Law Journal.

[1] U.S. Patent No. 9,380,225 (issued Jun. 28, 2016).

[2] See Kevin A. Rieffel, Can Apple’s New Infrared Patent Really Disable Your iPhone? IP Watchdog (July 6, 2016)

[3] See U.S. Patent supra note 1 at sheet 5.

[4] See Rieffel, supra note 2.

[5] See e.g. Geoff Edgers, Alicia Keys is done playing nice. Your phone is getting locked up at her shows now., The Washington Post (June 16, 2016) See also

[6] See Shanika Gunaratna, Apple’s new patent could disable your iPhone camera, CBS News (June 29, 2016)

[7] Clapper v. Amnesty Int’l. USA, 133 S. Ct. 1138, 1146 (2013).

[8] Id. at 1147.

[9] See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 335 (2006).

[10] See Clapper, supra note 7 at 1146.

[11] See Id.

[12] See Id. at 1155.

[13] See Id.

[14] See Laird v. Tatum, 408 U.S. 1, 16 (1972).

[15] See Id. at 4.

[16] Id. at 13.

[17] McCullen v. Coakley, 134 S. Ct. 2518, 2529 (2014).

The NBA Can Take A Play Out Of The NFL’s Disciplinary Policy

Derrick Rose was recently sued in federal civil court because he and two friends allegedly gang-raped a woman. A federal civil trial was held in California in which Jane Doe is suing Rose and his friends for sexual battery. The trial for the August 2013 incident was held October 14 , just before the start of the NBA season.[1]

Allegedly, Rose and his friends broke into his ex-girlfriend’s house and took turns raping her while she was in and out of consciousness. The woman, referred to as Jane Doe, claims she was too drunk to give consent. She sued Rose in civil court for 21.5 million dollars.[2]

Rose admits that he and his friends engaged in group sex with Jane Doe that night, but he maintains that she was not drunk and that Rose and his friends were welcomed into her home and that she initiated sex with them.[3] Rose requested sexual activities from Jane Doe consistently throughout their relationship, including requests for group sex. The night of the alleged rape, Doe texted Rose, “u need to come to me right now.”[4] Doe did not seek medical attention or law enforcement following the alleged rape. A criminal investigation is open but Rose has not been arrested.[5]

On October 19,  Rose and his two friends were found not liable by a jury. Rose’s attorney, Mark Baute, stated “We’re very happy that the system worked.”[6] “All three men were innocent from day one.” While, the plaintiff’s attorney stated, “I think it’s a shame for women, for this country, that a celebrity can come into court and slut-shame a woman like my client.”[7]

The NBA will have to make a decision on whether they should suspend Derrick Rose for a portion of the season. If the NBA believes that this is just a case of extortion, then in all likelihood Rose will not be suspended. If Rose does lose this civil proceeding though, the NBA may act and suspend Rose.[8] Rose has admitted to group sex in his testimony. Although group sex is not illegal, this situation that Rose is in is not a good look for the NBA. The NBA has the power to discipline players for off-court conduct in order to protect the best interest of the game of basketball under Article 35 of the CBA.[9] Similarly, the NFL has broad authority to suspend their players for off the field actions under Article 46 of their CBA. [10] The NFL has recently used this provision to suspend players such as Tom Brady and Ray Rice. Roger Goodell holds NFL players to a higher standard than the criminal justice system does.[11] Derrick Rose would almost certainly be suspended if he was in the NFL. Although this is a civil suit, the Derrick Rose situation is very bad press for the NBA and Adam Silver can take the initiative and suspend Derrick Rose for his actions. But, suspending Rose could have its consequences. Adam Silver has to be careful. NFL players do not favor Goodell’s broad disciplinary power and are fighting to take this power away. If Adam Silver wants to keep his power and keep his good relationship with the players, then he has to be careful with his suspensions.

Joel Krooks is a second year law student at Benjamin N. Cardozo School of Law and a staff editor of the Cardozo Arts & Entertainment Law Journal. He is a sports enthusiast who hopes to pursue a career as a sports lawyer.

[1] See Adrienne Lawrence, What you need to know about the Derrick Rose case, ESPN, (Oct. 4, 2016)

[2] See id.

[3] See id.

[4] Tim Cato, The specifics of the Derrick Rose rape case, as explained by lawyers, SB Nation, (Sep 16, 2016)

[5] See Michael Mccann, Legal strategies for Derrick Rose, accuser ahead of rape civil trial, Sports Illustrated, (Oct. 4, 2016)

[6] Derick Rose, two friends found not liable in sexual assault civil trial, ESPN, (Oct. 19, 2016)

[7] Id.

[8] See Justin Gloria, NBA Rumors: Derrick Rose to miss season, suspended by Knicks due to gang rape case?, Sports Rageous, (Sept. 2, 2016)

[9] See National Basketball League Collective Bargaining Agreement (Aug, 2014)

[10] See National Football League Collective Bargaining Agreement (Aug. 4, 2011),

[11] Brent Shrotenboer, Why are fewer NFL players being arrested? USA Today (Dec. 18, 2015)


Making Music Accessible: Closed Captions in Light of California Court Ruling on The Duties of Film Studios

Is it unreasonable for deaf moviegoers to expect that song lyrics might be included in film captions and subtitles? On Wednesday, September 28, 2016, a California District court found that it was, when it granted summary judgment to a group of movie studios named in a class action lawsuit filed by the Alexander Graham Bell Association (“the Association”)  for the Deaf and Hard of Hearing.[1] The Association filed the claim on the grounds that the studios’ distribution of their works with less-than-complete captions amounted to false advertising and a civil rights violation against the hard of hearing. The court found that a “reasonable consumer” would have no reason to believe that there was full captioning of a given film, and that the Association cannot prove the intentional discrimination required to mount a civil rights claim.[2]

The court acknowledged that whether the film should include these lyrics and whether they must are two distinct issues, but the determination of what to include in a caption is part of the movie making process, and is up to the studio. The court described how the examples provided by the Association show that, in circumstances where music with lyrics played, important dialogue was spoken, such that the dialogue and not the lyrics ought to be captioned, and, thus, captions on a film are a matter of creative choice for the studio.[3] Studios have also made arguments that there are certain technical challenges that come with including captions on their programming,[4] though given that the technology is always being improved, this argument strikes as fairly weak. For the purpose of practicality, it may be that this is indeed an accurate summation of the obligations in the creation of film captions. In setting up a form of disability accommodation as something subject to first amendment protection and creative license, however, it leaves open the possibility of failing to provide adequate accommodation where otherwise required because it somehow infringes on the aesthetics of someone’s vision.

The court adopts a “reasonable person” standard with regard to caption expectation and thus minimizes the role of disability on reliance on the accuracy of the captions. Unclear in the decision is the extent to which a “reasonable person” suggests a “reasonable person who is deaf/hard of hearing,” but the implication is that it is the more general standard. This language could potentially invite future insufficient disability accommodations, because the reasonable person who is not hard of hearing has few, if any expectations with regard to captions, because they simply do not need them to understand the movie. The court rejects the characterization of the deaf community as a vulnerable population because the case from which the Association cites, Lavie v. Proctor & Gamble Co. (2003), refers to vulnerable populations as those that are easily persuaded by false advertising, like small children. If vulnerability hinges on inability to perceive a piece of media for it’s message, then one would think the definition would encapsulate individuals who cannot hear the musical accompaniment to a film, which in many circumstances could communicate important information. This narrow reading of what constitutes “vulnerability” will likely bar other individuals with varying disabilities from lodging a successful claim on these grounds.

The court found that the Association’s argument that they relied on the studio’s captions of the movies because there is no alternative did not prove reliance, but rather the opposite, that the hard of hearing would purchase the DVDs regardless of the quality of the captions and thus do not rely on their quality when making their purchase at all. This argument then suggests that reliance would be predicated on choice, that a consumer in this case would have had to have chosen only to buy films where they believed the captions to be superior. This argument fails to imagine circumstances in which an individual would purchase entertainment media that he or she could not fully enjoy, namely that film and television are hugely important elements of modern human culture, where failure to participate can leave one isolated.

The court presents accommodation as something subject to creative license. While this ruling permits the studios to continue leaving out song lyrics from captioning, it should not be read as giving license for minimal accommodation. The recent growth in prominence of the Deaf West Theatre Company both in the revival of the musical Spring Awakening on Broadway,[5] and their featuring in Ingrid Michaelson’s music video for the song “Hell No,”[6] suggests that music can be presented to the deaf and hard in hearing in ways that can be appreciated by any “reasonable person” as creative and engaging entertainment. Given the prevalence of online streaming, computerized glasses,[7] handheld devices, and others, it simply does not follow that there is no way in which the lyrics of background music might somehow be incorporated for the benefit of deaf audiences. If the takeaway from this ruling is that the studios have creative license when it comes to accommodation, then moving forward one may hope that this creativity is employed to implement new and more effective ways of enhancing the film-watching experience for the deaf and hard of hearing, rather than to make a “creative decision” to do only the bare minimum.


Arielle Vishny is a second year law student at the Benjamin N. Cardozo School of Law and a staff editor of the Cardozo Arts and Entertainment Law Journal. She is passionate about law and the music industry, and can be found on LinkedIn.

[1] Gardner, Eriq, “Studios Beat Lawsuit Over Non-Captioning of Song Lyrics in Movies and Television,” The Hollywood Reporter Esq. (Sept. 29, 2016, 12:36 PM),

[2] Christie Anthony et. al. v. Buena Vista Entertainment Inc., 2:15-cv-09593-SVW-JPR (C. D. Cal. Sept. 28, 2016).

[3] Id.

[4] Lawler, Frank, “Netflix sued for lack of captions on streaming videos,” Gigaom (June 17, 2011, 8:41 AM)

[5] Spring Awakening The Musical,


[6] Michaelson, Ingrid, “Hell No,” (2016)


[7] Herbert, Geoff “Regal’s new closed caption glasses finally make movies enjoyable for deaf and hard-of-hearing,” (June 23, 2013, 4:51 PM)

SCOTUS to Determine If “THE SLANTS” Is Offensive to Asians

On September 29, 2016, the U.S. Supreme Court decided to revisit a controversial issue surrounding the federal government’s ban on offensive trademarks, specifically whether this ban violates free speech under the First Amendment of the United States Constitution. The Federal Circuit ruled on December 22, 2015 that the seventy-year old disparagement clause of the Lanham Act (quoted below) was in fact unconstitutional since the First Amendment forbids the government from banning offensive speech.[1] At issue here is the desire for an Asian-American Rock Band from Portland, Oregon to trademark the name of their band, THE SLANTS,[2] for “Entertainment in the nature of live performances by a musical band,” in order to “reclaim” and “take ownership” of Asian stereotypes.[3]

Section 2(a) of the Lanham Act provides that a trademark shall not be refused registration due to its nature unless it “[c]onsists of or comprises immoral deceptive, or scandalous matter; or matter which may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”[4] In 2011, the U.S. Court of Appeals for the Federal Circuit upheld the decision of the U.S. Patent and Trademark Office (“PTO”) that the band’s name cannot be afforded trademark protection because the use of the name THE SLANTS is a racial slur that would be viewed as offensive or disparaging by a majority of Asian-Americans.[5] The PTO’s Trademark Trial and Appeal Board (“TTAB”) affirmed the examining attorney’s reasoning of refusal for registration, further explaining that “dictionary definitions and other sources cited by the party ‘unanimously categorize the word slant, when meaning a person of Asian descent, as disparaging.”[6] The Board also pointed to evidence that Asian groups had objected to respondent’s use of the mark as the name of its band and that the members of the band have admitted their use of the word as an “ethnic slur for Asians” in order to “take on stereotypes” about Asians.[7]

Generally speaking, when the PTO is faced with a First Amendment case, its defense is usually that denying an applicant a registration doesn’t cause him/her much harm.[8] It also explains that nobody is banned from using such offensive terms in their everyday life, and that a mark is still capable of protection under common law trademark rights.[9]  While it is true that a trademark can still be protected under common law, this protection is exclusively limited to the geographic area(s) to which the mark has been used.[10] Of course, a trademark holder would prefer to have a federally registered mark since “the holder of a federal trademark has a right to exclusive nationwide use of that mark where there was no prior use by others.”[11] This nationwide protection provides a trademark holder with a number of legal remedies and benefits, including but not limited to, stopping counterfeit goods at the border, putting competitor companies on notice of a brand owner’s trademark rights, and providing easier access to federal courts, if necessary.[12]

PTO decisions regarding whether a mark is disparaging or not seem to be arbitrary and unpredictable.[13] It has been contended, “Section 2(a) fosters arbitrary and discriminatory enforcement driven by the subjective personal views of PTO officials”[14] and that “the often-stated maxim that ‘each case must be decided on its own facts’ never rings so loudly as it does in Section 2(a) refusals.”[15] This same issue was addressed in June 18, 2014, when a federal judge ordered cancellation of six trademarks belonging to an American professional football team on the grounds that the trademarks consisting in whole or in part of the term THE REDSKINS was obtained contrary to Section 2(a), 15 U.S.C. § 1052(a), as disparaging to Native Americans.[16] This case was one that sparked the start for free speech debate, and it remains a contested issue. The Washington Redskins dispute pointed to instances where similar disparaging marks were treated in different ways and had been registered by the PTO. Some examples include RETARDIPEDIA website, DANGEROUS NEGRO shirts, DUMB BLONDE beer, etc.[17]  If the Supreme Court decides to strike down the federal government’s ban on offensive trademarks, it will be interesting to see the effect on this high-profile case as well as the future of trademark registrations and trademark law.



Brittany Waserstein is a second-year student at Benjamin N. Cardozo School of Law and a Staff Editor of the Cardozo Arts & Entertainment Law Journal. She is an active member of Cardozo’s FAME Center, as wells as the Entertainment Law Society and the Fashion Law Society.

Linkedin profile:

[1] See In re Tam, 785 F.3d 567 (Fed. Cir. 2015).

[2] See Donahue, Bill, Offensive Trademark Ban Going Down? It Probably Should, law360 (Sept. 29, 2016 9:50 PM),

[3] In Re Simon Shiao Tam, loeb & loeb,

[4] Lanham Act § 2(a), 15 U.S.C. § 1052(a) (1946).

[5] Lee v. Tam, No. 15A925 (filed Mar. 9, 2016).

[6] Id. at 5.

[7] Id.

[8] Donahue, supra note 2.

[9] Id.

[10] J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition ß 26:32 (4th ed.).

[11] Id.

[12] Donahue, supra note 2.



[15] (quoting In re Hines, 1994 WL 456841, at *5 (TTAB 1994)).

[16] Ernest V. Linek, NFL Redskins Federal Trademark Registrations Canceled, banner & witcoff,


Second Circuit Halts Appeal Against World Wrestling Entertainment, Inc.

On Friday, September 23, 2016, the Second Circuit denied an appeal by former World Wrestling Entertainment, Inc. (WWE) wrestler, William Albert Haynes III (professionally known as Billy Jack) alleging that the corporation intentionally hid the risks of traumatic brain injuries associated with their entertainment offering.[1] The WWE fought the claims, asserting that Haynes’ suit did not meet the proper jurisdiction requirements to move to the appeals court because the district court in Connecticut had not yet certified its ruling as final.[2] The Court reasoned that the claim could not move forward while Mr. Haynes and other wrestlers were still in the process of settling disputes with the WWE in district court.[3] Still, the denial of Haynes’ appeal is not a total loss for the wrestler. It simply means that the panel, which was composed of three circuit court judges, decided that the processes of trial proceedings must be followed to avoid improper steps during civil procedure.

Haynes disagreed with the court’s decision, citing Gelboim v. Bank of America (2015), where the Supreme Court overruled Hageman v. City Investing (1988), holding that appeals may move forward to the higher court, regardless of ongoing or unsettled litigation claims.[4] The Circuit Court rejected Haynes’ argument, stating:

Because the McCullough and Haynes cases, the subjects of the pending motion, were consolidated with other cases in the district court for all purposes, and the Supreme Court in Gelboim explicitly declined to express an opinion on the appealability of a dismissal of one of multiple cases in such a consolidation, Gelboim does not oblige us to reconsider the continuing validity of Hageman.[5]

Regardless of the court’s denial, the issue at hand skirts a fine line between an actionable tort and a claim for which relief cannot be granted.

Mr. Haynes’ claim and attempt for appeal come on the back of the major concussion litigation settlement between former NFL players and the league, which was handed down on April 22, 2015 by the United States District Court for the Eastern District of Pennsylvania.[6] The NFL settlement, approved by District Court Judge Anita Brody, is expected to cost the NFL nearly $1 billion over the life of the payout.[7] The key factor in the more than 20,000-player class action suit against the NFL was the assertion by the players that the league not only had scientific evidence linking football with traumatic brain injury, but also that the league affirmatively hid that information from players.[8] The similarities between Mr. Haynes’ and his colleague’s claims against the WWE and the NFL players against the NFL are plentiful, yet the WWE has repeatedly overcome claims and allegations made by their athletes against them. Federal Judge Vanessa Bryant previously dismissed a class action filed by wresters against the WWE in March 2015, stating that the players’ assertion was, “replete with theoretical allegations of conditions from which a hypothetical person could suffer without alleging that any particular Plaintiff actually suffers from such a condition which has been causally connected by an expert to such Plaintiff’s performance at WWE events.”[9]

Whether Haynes and his fellow wresters have adequate evidence to move forward with their claim remains uncertain, but with the continued dismissal and rejection of numerous courts to allow their pursuit, the facts do not seem to be in the wresters’ favor. Perhaps time will tell if there is indeed merit behind the wrestlers’ accusations against the WWE, but it seems for the moment that the culmination of Haynes’ current suit will have to come first. Whatever the future brings, medical science has come to an overwhelming consensus that repeated trauma to the head can, and in many case does, have long lasting negative effects on the human brain.[10] For the sake of everyone involved, one can only hope that the two sides come to an agreement that the health and safety of the athletes involved in such a massive entertainment conglomerate are most important in the controversy at hand.

Justin Drazin is a second-year law student at the Benjamin N. Cardozo School of Law and a Staff Editor of the Cardozo Arts & Entertainment Law Journal. He is also a legal intern with the Brooklyn Nets and Barclays Center in Brooklyn, New York.



[1] Second Circuit Tosses Appeal in Unfinished WWE Concussion Suit. (last visited September 27, 2016).

[2] Id.

[3] Id.

[4] See Id.

[5] Id.

[6] Late Appeal Sends NFL Concussion Case to Supreme Court. (last visited September 28, 2016).

[7] What’s Next for Each Side After the NFL’s Concussion Settlement? (last visited September 28, 2016).

[8] Id.

[9] More than 50 Wrestlers File Suit Against WWE, Claim it Hid Risk of Brain Trauma. (last visited September 27, 2016).

[10] Ben McGrath. Does Football have a Future? The N.F.L. and the Concussion Crisis. The New Yorker. January 31, 2011. (last visited September 29, 2016).


The Design Debate: Star Athletica LLC v. Varsity Brands Inc.


Fashion Designers have long been at odds with U.S. Lawmakers in regards to the protections given to their designs.[1] This tension is rising to a head now that a writ for certiorari has been granted in part in the matter of Star Athletica LLC v. Varsity Brands Inc., whose Sixth Circuit decision seemingly opposes past decisions related to United States Copyright Law.[2]

Brief History of United States Copyright Law for Pictorial Works

According to 17 U.S.C.A. § 101, “[a] ‘useful article’ is an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. An article that is normally a part of a useful article is considered a ‘useful article.’” Additionally, a useful article is only to be defined as a “pictorial, graphic, or sculptural work” (hereafter PSG) if the design incorporates features that “can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.”[3] These definitions allow the court, in cases such as Brandir Intern., Inc. v. Cascade Pacific Lumber Co.,[4] to formulate a test for conceptual separability of a PSG from the useful article to which it is attached. For example, in Kieselstein-Cord v. Accessories by Pearl, Inc., the court held that the design of the belt buckles held an aesthetic value, as shown by the fact that people used them for jewelry unattached to their belt, and that the belts would still serve their entire useful purpose without this ornamentation.[5] The courts still rely on these types of vague tests of separability, as can be seen in the lower court’s decision in Star Athletica LLC v. Varsity Brands Inc.[6]

History and Procedural Posture of Star Athletica

Star Athletica LLC v. Varsity Brands Inc., is a matter arising from allegations that Star Athletica infringed on Varsity Brands’ copyrights by printing Varsity’s designs on the surface of Star’s uniforms.[7] The district court of Tennessee held that Varsity’s designs were not separable from the utilitarian function of a cheerleading uniform.[8] The decision states that if you conceptually remove the designs from the uniform, you are left with a blank garment that fails to “signal the presence of a cheerleading uniform in the garment at hand.”[9]

The case rose to the Sixth Circuit Court of Appeals, where the court  reached a very different holding.[10] The court held that Varsity’s designs were copyrightable, because, among other reasons, the designs were customizable, and many different combinations of the “stripes, chevrons, colorblocks, and zigzags” would allow the dress to be recognizable as a cheerleading uniform.[11]

As previously stated, under appeal for a writ of certiorari by Star, the case is now before the Supreme Court.[12]

The Fashion Industry’s Response

Fashion designers have very little protection available for most aspects of their designs.[13] Because of this, the Varsity case has garnered a great amount of attention in the fashion industry due to the holding of the Court of Appeals. Groups of fashion designers have even published amicus briefs in support of the Varsity holding in the Sixth Circuit.[14] The holding of the Supreme Court case should help cement the tests necessary to determine if a design has separability, as discussed in the Copyright History section. Susan Scafidi, founder of Fordham University’s Fashion Law Institute has stated that the intent of their brief is to “prevent the opposite result, namely the danger that the Supreme Court might roll back the small amount of copyright protection the fashion industry already has for things like fabric prints and jewelry.”[15]


The end result of this case will rely on both the court’s decision of whether the designs serve a useful function, and whether simple designs such as zig-zags and chevrons and their arrangement can be said to be original. Cheerleading uniforms almost always include a school or organization’s logo, in addition to the designs which match the organization’s adopted colors. The designs and their coloring seem to serve the purpose of making the uniforms identifiable from a distance, especially when the trademark or logo of the organization is not visible. The creators of the arrangement, who use Varsity’s customization options, may use some artistic and subjective decision making, however, their overall goal is to make a uniform that displays or conveys the organization they belong to. This case is risky for the fashion industry because the pattern and choice of colors on cheerleading uniforms may serve a greater utilitarian purpose than it would in traditional apparel, but the Supreme Court could still set a precedent in favor of protecting shapes and patterns as copyrightable when attached to apparel.


Kurt Sohn is a second year law student at Benjamin N. Cardozo School of Law and a Staff Editor of the Cardozo Arts & Entertainment Law Journal. He is an active member in Entertainment and IP Law organizations throughout New York City, and looks forward to a career supporting the industry.


[2] Star Athletica, L.L.C. v. Varsity Brands, Inc., 136 S.Ct. 1823 (Mem) (U.S., 2016).

[3] Definitions, 17 USCA § 101

[4] Brandir Intern., Inc. v. Cascade Pacific Lumber Co., 834 F.2d 1142 (C.O.A., 1987)

[5] Kieselstein-Cord v. Accessories by Pearl, Inc., 632 F.2d 989 (C.O.A., 1980).

[6] See Varsity Brands, Inc. v. Star Athletica, LLC, 2014 WL 819422 (W.D.Tenn., 2014).

[7] Id.

[8] Id.

[9] Id. at 1.

[10] Varsity Brands, Inc. v. Star Athletica, LLC, 799 F.3d 468 (C.A.6 (Tenn.), 2015)

[11] Id. at 491.

[12] Star Athletica, L.L.C. v. Varsity Brands, Inc., 136 S.Ct. 1823 (Mem) (U.S., 2016).


[14] See Kristi Ellis, Designers Weigh In on Supreme Court Copyright Case, Womens Wear Daily, (Sept. 27, 7:46 PM),; See also Scotus Blog, (Sept. 26, 8:37 PM)

[15] Kristi Ellis, Designers Weigh In on Supreme Court Copyright Case, Womens Wear Daily, (Sept. 27, 7:46 PM),

Recent Developments in Art Law

From suits brought by celebrities and prison guards to successes by the government, there have been many high-profile developments in art law over the past few months. Below are short summaries of some of the most intriguing cases.

Primarily known for his performances in film and television shows, Alec Baldwin is also an avid art collector. Recently he has been particularly interested in the work of Ross Bleckner, so much so that it is the basis of his lawsuit against Mary Boone Gallery, a prominent New York City gallery that specializes in contemporary art. Baldwin has been obsessed with Bleckner’s “Sea and Mirror” since seeing it on an invitation to an exhibition in 2010, carrying a picture of it next to photos of his father and one of his daughters at all times.[i] Baldwin asked Mary Boone to buy it from the collector who had acquired the painting in 2007. After finally purchasing it from the collector in 2012, for $190,000, Baldwin noticed that the colors were off and it had a peculiar smell. He alleges that Boone had Bleckner take an unfinished painting from the same 1996 series and turn it into a copy of “Sea and Mirror” to sell to Baldwin. He contends that Boone told him it was a fake, which she now denies, instead insisting that Baldwin knew that it was not the original. Bolstering his suit, Baldwin also has possible proof of fraud from Mary Boone’s gallery cataloguing system. He has evidence that she stamped the painting that she sold him with the same number as “Sea and Mirror.” Unable to bring criminal charges after meeting with the Manhattan District Attorney, Baldwin has sued Mary Boone for fraud in New York State Supreme Court.

For more information on Alec Baldwin’s law suit visit this link:

Proceeding through the looking glass, one of the most popular painters in the world, Peter Doig, found himself in a spot of legal trouble over the summer when a retired Canadian correctional officer said that he owned an early painting of the artist’s and wanted to sell it for millions of dollars. Doig denied that it was his, leading to a unique legal issue: What does one do when one wants to sell an artwork for a large sum of money but the artist in question denies ever having made it? For Robert Fletcher, the Canadian correctional officer, the answer to that question was to sue Doig in the United States District Court for Northern Illinois, alleging that Doig was denying authorship because of a “personal vendetta” against Fletcher.[ii] Fletcher says that he bought the painting when Doig was an inmate at a correction facility near Thunder Bay Ontario, Canada in the 1970s. Through testimony, Doig proved that he had never visited nor been incarcerated at the Thunder Bay correctional facility. Further, the landscape was signed “Peter Doige,” a misspelling of his last name. Interestingly, “Peter Doige” was incarcerated at the correctional facility during that time and liked to paint, according to his sister, testifying in Doige’s stead as he died in 2012. Fletcher’s Achilles heel was his expert, one of the plaintiffs in the case set to receive 25% in proceeds if Fletcher won. This severely weakened Fletcher’s case. The court ruled that Doig did not create Fletcher’s landscape, a fitting conclusion to one of the strangest cases of art authentication ever.

After this past July’s stringent decision, collectors and gallerists in New York will have to pay more than just the sticker price when they decide to buy or sell art. Larry Gagosian got a major slap on the wrist when he was ordered to pay over four million dollars in back taxes, interest, and penalties from his gallery’s transactions over the past decade. Investigators discovered that from 2005 to 2015, Gagosian’s California outpost, Pre-War Art Inc., sold and shipped millions of dollars of art to customers in New York without paying a sales tax. The apple doesn’t fall far from the tree, as the New York branch failed to do the same from 2012 to 2015. In order to prevent this problem in the future, Gagosian Gallery will be setting up its own shipping company and sending its sales information to authorities for the next six years.[iii]

Further instances of the rich avoiding taxes have masterpieces languishing in the dark, behind bars at the Geneva Freeport. A hotbed of tax evasion and money laundering, the Geneva Freeport has been facing increasing scrutiny for its lack of transparency. Over four thousand paintings, antiquities, and sculptures are stored in this free port, eliciting uproar. From angry art lovers who think that art should not be kept locked away and so uncouthly commoditized, to officials who are fed up with the illegality, there is widespread disapproval of the Geneva Freeport. Some of this disapprobation is because collectors keep their art stored in free ports around the world in order to avoid paying costly luxury taxes.[iv] However, there has been more troubling press about works at the Geneva Freeport that have caused collectors to put their art in other locations; the most heinous of which is the discovery of a work by Amadeo Modigliani valued at twenty million dollars which is suspected to be Nazi looted art.[v] As collectors flee, the Geneva Freeport is using counsel to try and clean up its act. However, there remains the one issue to consider: whether free ports in general are ethical at all.

Lastly, a 2012 initiative of the Association of Art Museum Directors (“AAMD”) to pass a bill to shield international loans of art will finally be taken up by the full Senate. This bill, the Foreign Cultural Exchange Jurisdictional Immunity Clarification Act, would protect works on loan from foreign countries against potential seizure while being displayed in American museums. The AAMD has been pushing this legislation as a means to convince reluctant countries, such as Russia, to loan works without fear that it would open them up to litigation on claims of ownership. Nazi looted art would be exempt from this protection, allaying fears that have stalled further discussion of the bill. However, not all worries have been quashed and there are many opponents to the legislation.[vi]


Madeline Kessler is second-year law student at Benjamin N. Cardozo School of Law and a Staff Editor of the Cardozo Arts & Entertainment Journal. She is an active member of the Art Law Society and pays all her taxes.

[i] Bowley, Graham, Paint and Switch? Did Alec Baldwin Pay $190,000 For the Wrong Picture?, The New York Times (Sept. 21, 2016 9:10pm),

[ii] Bowley Graham, Rotenberk, Lori, The Artist Peter Doig Wins a Case Involving a Painting’s Attribution, The New York Times (Sept. 21, 2016 9:11pm),

[iii] Bowley, Graham, Carvajal, Doreen, One of the World’s Greatest Art Collections Hides Behind This Fence, The New York Times (Sept. 21, 2016 9:12pm),

[iv] Kennedy, Randy, Gagosian Gallery to Pay New York State 4.3 Million, The New York Times (Sept. 21, 2016 9:13pm),

[v] Miller, Hugo, Art Collectors Quit Scandal-Hit Geneva, Bloomberg News (Sept. 21, 2016 9:14pm),

[vi] Carvajal, Doreen, Bill to Shield International Art Loans Gains in Senate, The New York Times (Sept. 21, 2016 9:15pm),

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