Assignment Response 3420 Keller PDF

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Summary

Professor: Dr. Thomas Baker.
Case Studies are mandatory assignments, but he just wanted you to answer the question directly and to the point. No "fluff" necessary. For this case study you were to answer the questions: Why was the use of the Three Stooges on the tee shirts in Comedy III NOT t...

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T. Baker III/KINS 3420 5 November 2015 Keller

1. Why was the use of the Three Stooges on the tee shirts in Comedy III NOT transformative? Using the Three Stooges on t-shirts in Comedy III was not transformative because, according to the court’s reasoning, the artist’s “undeniable skill is manifestly subordinate to the overall goal of creating literal, conventional depictions of The Three Stooges so as to exploit their fame”. The court could not decide if the artist’s depictions were protected by First Amendment rights. Furthermore, because they were not able to perceive how the right of publicity would remain a viable right when the depictions did not falsify celebrity endorsements. The use of the characters in this case was not transformative because the use did not alter their likenesses on the t-shirts. When used, it was clear to notify the depictions as the Three Stooges as seen in the scope for their profession and not something similar or altered. 2. Why was the use of the August brothers in the comic book in Winter transformative? The use of the Winter brothers in the comic books was held transformative by the court because they reasoned that the comic books, “are not just conventional depictions of plaintiffs but contain significant expressive content other than the plaintiffs’ mere likenesses”. The artist animated the brothers, so they were creatively altered from their original likeness. Because the brother are definitely not cartoons, the court relied on this fact to rule that the artist’s depictions was transformative. This was also backed by the fact that the animated version of the brothers did not align with their way of making a living as rockers. Changing the last names, appearances, and “purpose” of the Winter brothers made it transformative in that you could still recognize the Autumn brothers as the Winter brothers and identify the creative aspects that differ from reality. 3. Why was the use of Ulala in the video game in Kirby transformative? Like the Winter case, Ulala’s characteristics can be recognized in connection to actual singer Kierin Kirby. The court held that “Ulala is more than a mere likeness or literal depiction of Kirby.” The character’s appearance, costume, dance moves, hairstyle, differing occupation as a space-reporter, and physique were nothing like Kirby’s. However because the character used Kirby’s “signature lyrical expression ‘ooh la la’”, it was enough to pin connection to the plaintiff. 4. Why was the use of No Doubt avatars in No Doubt not transformative? The use of the No Doubt avatars was not transformative because Activision had licensed rights to No Doubt’s likenesses. The issue was that the defendant exceeded the scope of the license by allowing users to manipulate the No Doubt avatars to play any song in the game. But because it

does not alter what the actual band members do for a living, which is perform in a band. The court held that No Doubt’s right of publicity prevailed despite Activision’s First Amendment defense because the game was found not transformative under the Comedy III test. The avatars were “literal” not altered recreations of the band members and they did the same activity by which No Doubt’s maintains its fame. 5. Which of the 4 cases did the Court find best applied to the facts in Keller concerning the EA Sports NCAA video games? No Doubt versus Activision Publishing, Inc. was the case the Court found best applied to the facts in Keller concerning the EA Sports NCAA video games. The court concluded that EA’s use of Keller’s likeness does not contain significant transformative elements such that EA is entitled to the defense as a matter of law. EA allegedly replicated Keller’s physical characteristics in NCAA Football, similar to Activision and the avatars of the No Doubt band members. In both cases, users can manipulate the characters in the performance of the same activity they are known for in actuality. In addition, he context was similarly realistic in depictions of the venues and football stadiums, so Keller was found by the district court to be represented as what he was – a football player. This is why the use of Keller’s likeness in EA’s video game was not transformative. No Doubt offers a persuasive precedent that cannot be materially distinguished from Keller’s case However, the district court was said to be in error because they only focused on Keller’s likeness and not applied the transformative elements of the game as a whole....