## Facts

- Electronic Arts Inc. (EA) produced *The Godfather* video game series, an expressive work based on the novel and films.
- Within the games, certain virtual weapons were named using “Dillinger,” including “Dillinger Level Three Tommy Gun” (earned through gameplay) and “Modern Dillinger” (available for online purchase).
- Dillinger, LLC claimed ownership of federal trademark registrations for “John Dillinger” and asserted post-mortem publicity rights in John Dillinger’s personality under Indiana’s right-of-publicity statute.
- John Dillinger, a well-known 1930s gangster, died in 1934, before Indiana enacted its modern right-of-publicity statute in 1994.
- Dillinger, LLC sued alleging Indiana right-of-publicity violations and related state-law claims, plus federal Lanham Act trademark infringement and unfair competition based on EA’s in-game use of “Dillinger.”

## Issues

1. Whether Indiana’s right-of-publicity statute applies to a personality who died before the statute’s enactment.
2. Whether video games fall within the statute’s “literary works” exception, exempting uses within the work and its promotion.
3. Whether the First Amendment, under the *Rogers v. Grimaldi* test, bars Lanham Act and related trademark/unfair-competition claims based on use of “Dillinger” in an expressive video game.

## Decision

- The court granted judgment on the pleadings for EA on the Indiana right-of-publicity claim, unjust enrichment, the Indiana Crime Victim Act claim, and certain state-law trademark theories.
- The court granted summary judgment for EA on the remaining Lanham Act and related trademark/unfair-competition claims.
- On retroactivity, the court held Indiana’s right-of-publicity statute does not apply to individuals who died before its enactment; thus Dillinger, LLC could not enforce statutory publicity rights for John Dillinger.
- Independently, the court held video games qualify as “literary works” under the statute’s exception, which would bar liability for the in-game use even if publicity rights existed.
- Applying *Rogers*, the court held EA’s use of “Dillinger” had artistic relevance to the game’s content and was not explicitly misleading as to source or endorsement; the First Amendment therefore defeated the trademark and unfair-competition claims.
- Final judgment entered for EA; all claims were dismissed.

## Legal Principles

- Indiana statutes are generally not applied retroactively absent clear legislative intent; Indiana’s right-of-publicity statute does not reach personalities who died before its enactment.
- Indiana’s right-of-publicity statute excludes uses of a personality in “literary works” and related advertising or promotion; video games can qualify for this exception.
- Under *Rogers v. Grimaldi*, use of a mark in an expressive work is protected unless (1) the use has no artistic relevance to the work, or (2) the use is explicitly misleading as to source or content.
- Minimal (non-zero) artistic relevance is sufficient under *Rogers*; absent an explicit statement or overt act indicating endorsement or sponsorship, use is typically not “explicitly misleading.”

## Conclusion

The court held that Dillinger, LLC could not enforce Indiana post-mortem publicity rights for John Dillinger and, in any event, the statute’s literary-works exception covered the challenged use in a video game; the court also held the First Amendment barred the trademark and unfair-competition claims under *Rogers* because the “Dillinger” weapon names were artistically relevant and not explicitly misleading.


Dillinger, LLC v. Elec. Arts Inc., 101 U.S.P.Q.2d 1413 (S.D. Ind. 2011)