Dillinger kin lose claim against video game company

2011-06-16T17:55:00Z 2011-06-16T23:51:01Z Dillinger kin lose claim against video game companyBy Times Staff nwitimes.com
June 16, 2011 5:55 pm  • 

INDIANAPOLIS | After a 20-month battle in federal court, the Corleones beat bank robber John Dillinger, and they used Marilyn Monroe and the First Amendment to do it.

Judge Jane Magnus-Stinson of the U.S. District Court of Southern Indiana on Thursday ruled against the descendants of Dillinger who sued video game developer Electronic Arts for what they claimed was a violation of the copyright on the name Dillinger.

EA developed the popular "Godfather" and "Godfather II" games based on the Mario Puzo novels and Francis Ford Coppola-directed movies of the same name. In the games, a weapon similar to a Thompson submachine gun is named "The Dillinger."

Among the arguments in the case, the Dillinger family members claimed they control the right of publicity in connection with their infamous relative, who was killed by FBI agents in 1934 after 14-month crime spree. It included a bank robbery in East Chicago, which left a police officer dead, and Dillinger's escape from the Lake County Jail in Crown Point where he was awaiting trial for the killing.

The family cited the 2006 case of Scalf v. Lake County Convention and Visitor's Bureau, in which a Lake County judge ruled that the state's 1996 right-to-publicity statute should be applied retroactively to Dillinger's family for the county's use of the name to promote a museum of Dillinger artifacts.

EA countered with its own case law, a 2007 case out of New York in which a judge ruled that the descendants of actress Marilyn Monroe could not be granted similar publicity rights to her name because Monroe died before the law was enacted.

After reviewing the two decisions, Magnus-Stinson found that the Indiana Supreme Court would not agree with the Dillinger family and likely would rule that Indiana's right-of-publicity statute doesn't apply to personalities who died before it became law.

In granting EA's motion for summary judgment, the judge also ruled that depictions of Dillinger in popular culture have reinforced his association with the Thompson submachine gun, thus EA's use of the name was free speech protected by the First Amendment.

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