The First Amendment Again Protects Video Games as Expressive Works

On November 24, 2014, in an order granting partial summary judgment to video game publisher Activision, a California district court held that Call of Duty: Ghosts is an expressive work protected by the First Amendment, warranting a dismissal of plaintiff's trademark infringement and unfair competition claims. The opinion is here.

The dispute arose out of Activision's use of plaintiff's Mil-Spec Monkey's ("MSM") "Angry Monkey" trademark—a design displayed on a "morale patch" sold by MSM—in Activision's Call of Duty: Ghosts. A morale patch is a patch worn by members of the military, in unofficial contexts, to express personal identity. The "Angry Monkey" morale patch is one of MSM's most well-known and popular patch designs.

The Ninth Circuit's two-pronged analysis, based on the Second Circuit's decision in Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989), finds an artistic work's use of a trademark that would otherwise violate the Lanham Act not actionable unless the use of the mark (i) has no artistic relevance to the underlying work whatsoever; or (ii) has some artistic relevance, but explicitly misleads as to the source or the content of the work.

Because of its popularity among military personnel and the significance of patches in the military world, the court held that MSM's "Angry Monkey" mark had taken on a meaning beyond purely denoting a link to MSM. The court further held that the game makes protectable use of this meaning under the Rogers test: the inclusion of the "Angry Monkey" patch in the game bears some artistic relevance to the creators' goal of offering players a feeling of personal identity and authenticity during game play, and Activision's use of the patch was not explicitly misleading given that the game's packaging is very clear as to its origin and source, prominently bearing the title Call of Duty and identifying Activision as its creator.

The case is Mil-Spec Monkey, Inc. v. Activision Blizzard, Inc. et al., Case number 14cv2361 in the U.S. District Court for the Northern District of California.