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Originally Posted by Solecismic
This is shocking to me. It undermines everything I've understood about the law. Lanham hasn't even been mentioned, nor has the rather complete defense of using likenesses in Cardtoons.
Either the EA lawyers are incompetent, trying to lose, or the law is being rewritten by these judges.
EA had the licenses more to try and shut out other publishers than to have anything worth while. I wonder if they're playing a dangerous game of trying to lose (claiming the avatars in the game aren't likenesses is a ludicrous defense) and hoping to settle at a reasonable cost. That would really keep competitors out of the market.
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I can only conclude that EA is using different strategies in Heller and O'Bannon just to see what sticks to the wall. I've been wondering for a while if EA doesn't care about the jury trial because they know they will lose. The plaintiffs will present a very sympathetic case, and the defense is very complex. A jury trial almost seems to be a lost cause, but wining on appeal seems more likely.
I don't understand the Lanham Act enough to know if it applies, but isn't the defining element of Cardtoons the parody element?
I've felt all along that there are two elements to the case -- one is information available to everyone (the MLBAM vs CBC standard) such as height, weight, uniform number that is not protected copyright. Second is the avatar in the game. I'm not sure I've ever seen an in-game avatar that actually looks like the player in real life.
The O'Bannon team seems to be better prepared than the Heller team. The Heller lawyer is talking about exposing the NCAA's hypocrisy in their case. Last time I checked, I don't think you can sue someone for being a hypocrite.