Judge whacks claim that games infringe on Dillinger name

A federal judge has shot down a lawsuit brought by heirs of notorious bank robber John Dillinger over the depiction of the Dillinger name in video games based on the classic movie "The Godfather."

U.S. District Court Judge Jane Magnus-Stinson wrote in a ruling Thursday that the Electronic Arts Inc. video games in which players can choose a "Dillinger" gun are protected under the First Amendment as "literary works."

Mooresville-based Dillinger LLC had filed suit in October 2009, claiming Redwood City, Calif.-based Electronic Arts violated its trademark to the Dillinger name and character by appropriating it without their consent. They claimed the use of Dillinger's name had no artistic relevance to the Godfather games for Sony Playstation, Microsoft Xbox and Nintendo Wii, and that the depiction misled players into thinking the games had the endorsement of Dillinger.

The judge disagreed in a summary judgement, writing that the Dillinger name is "quite incidental to the overall story of the game" and not a main selling point. Dillinger, who was killed by FBI agents in a 1934 shootout, was not alive during the period depicted in Francis Ford Coppola's “The Godfather” films.

“The court cannot simply infer that the Dillinger name confuses the public, let alone that such confusion outweighs First Amendment concerns,” Magnus-Stinson wrote. “All that is challenged here a single text-line used to identify one of many weapons within a visually complex videogame comprised of countless artistic elements.”

The judge earlier this week ruled that Dillinger LLC, which owns the trademark for the Depression-era bank robber, cannot challenge the depiction of the Dillinger name under Indiana's Rights of Publicity statute, since the law was enacted long after Dillinger died. The judge effectively sided with EA on all counts.

The Dillinger heirs, which are represented by Taft Stettinius & Hollister, are expected to appeal the ruling to the Seventh Circuit Court of Appeals. Local counsel for EA is Bose McKinney & Evans.

In the Electronic Arts games, players maneuver through a virtual world based on “The Godfather” films’ story line, facing rival gangs in a quest to become the most powerful mob family in America and Cuba. The lawsuit notes that, as the games progress, players must obtain weapons with greater firepower. Different iterations of the game offer various versions of the Dillinger Tommy Gun.

The heirs were seeking a permanent injunction restraining EA from selling any games using Dillinger’s name, for all unsold games to be turned over for destruction at Electronic Arts’ cost, and an order requiring EA to pay for rehabilitative advertising of the Dillinger trademark.