Athlete’s Right of Publicity Outweighs First Amendment Protections for EA Video Game, Court Holds

Hart v. Electronic Arts, Inc.
By Samantha Rothberg – Edited by Alex Shank

The Third Circuit reversed the U.S. District Court for the District of New Jersey’s grant of summary judgment to Electronic Arts (“EA”) in a right of publicity action, on the grounds that EA’s appropriation of Ryan Hart’s likeness in a video game was protected by the First Amendment. The case was remanded to the district court for further proceedings consistent with the Third Circuit’s adoption of the “transformative use” test.

The Way the Cookie Crumbles: “Metaphorical” Arguments Before The Supreme Court on the Patentability of Genes

Ass’n for Molecular Pathology v. Myriad Genetics, Inc.
By Alex Shank – Edited by David LeRay

On Monday, April 15, the Supreme Court heard oral arguments to determine the validity of a patent encompassing the use of the BRCA1 and BRCA2 genes. Mutations in these genes correlate strongly with the development of breast and ovarian cancers. As the patent owner, Myriad Genetics, Inc. (“Myriad”) possesses and exercises the exclusive right to sell diagnostic testing kits based on these genes.

Supreme Court Holds the First Sale Doctrine  Applicable to Parallel Importation

Kirtsaeng v. John Wiley & Sons, Inc.
By Sarah Jeong – Edited by Alex Shank

The Supreme Court held in a 6-3 decision that the “first sale” doctrine applies to copies of copyrighted work lawfully made abroad, reversing the judgment of the Court of Appeals for the Second Circuit. The case involved the resale in the United States of approximately 600 copies of textbooks that originally had been bought in Thailand at relatively inexpensive prices.

Uncertain Trajectory of the Rocket Docket in Patent Appeals

By Alex Shank – Edited by Michael Hoven

Patent litigators, enticed by the “Rocket Docket” EDVA and its recently relaxed evidentiary standards, may spur a spike in granted patents, compounding the defects of already over-patented system. However, other AIA reforms, including expanded post-grant review and the opening of PTO satellite offices, as well as PTO appeals of EDVA decisions, will likely temper the spike. Ultimately, opening the EDVA may figure most prominently in heightening the scrutiny of potentially cursory PTO examiner decisions.

Jersey Boys’ Use of Ed Sullivan Show Clip Is Fair Use, Ninth Circuit Affirms

SOFA Entm’t, Inc. v. Dodger Prods., Inc.
By Erica Larson – Edited by Alex Shank

The Ninth Circuit affirmed the decision of the District Court for the Central District of California to grant summary judgment and award attorneys’ fees to Dodger Productions, Inc. (“Dodger”) in its suit against SOFA Entertainment, Inc. (“SOFA”). In an opinion by Judge Trott, the court concluded that Dodger’s unlicensed use of a clip from the Ed Sullivan Show fell squarely within the fair use exception.