The makers of the popular video game, “Grand Theft Auto” successfully defended themselves in a California federal court earlier this month against a lawsuit brought by the owners of a strip club in East Los Angeles.  (Strip clubs vs. computer geeks...now THAT’S a fight worth watching).

But putting aside video games and strippers for just a moment—indeed, only one moment—the case is an important example of how the First Amendment limits many of the rights held by trademark holders.

The “Grand Theft Auto” video game series, produced by Rockstar Games, is known for its “crass brand of humor, gratuitous violence and sex, and overall seediness.”  (That’s not my description—that’s the court’s description.  In truth, it makes me want to play the game even more….)

Each game in the series takes place in a cartoon city, which is modeled after an actual American city.  So, how do you make a cartoon city look like the real thing?  Answer: take real places and make them look “cartoonish.” 

That’s what Rockstar Games did when it created the city of “Los Santos”, a cartoon version of Los Angeles in its "Grand Theft Auto - San Andreas" video game.  Among the “real places” they turned “cartoonish” was the Play Pen Gentlemen’s Club—a strip club located in East Los Angeles.  The video game borrowed the look of the club’s exterior and included it as part of the game’s scenic landscape—only the game referred to the club as the “Pig Pen” instead of the “Play Pen.”
(Uh, no comment.)

The owners of the Play Pen sued Rockstar Games, arguing that the video game infringed the club’s trade dress (i.e., the “look and feel” of the club’s exterior), and sponged off the goodwill the club had in its trademarked name.  Rockstar Games, on the other hand, argued that it merely “borrowed” some of the club’s exterior in order to make the game look more realistic. 

In sum, the court had to decide how much a person could “borrow” a trademark before the borrower crosses the line and becomes an infringer.  (Remember, borrower is good; infringer is bad).

The court found (correctly, in my humble opinion) that you can’t be sued for using a trademark in an artistic manner unless your use has “no artistic relevance to the underlying work whatsoever.”  In other words, if you use someone else’s mark for an artistic purpose, the First Amendment will generally protect you.  That is unless, of course, your use has no real purpose except to either commercially exploit the other person's trademark, or to confuse people as to the source or creator of the trademark.

In this case, the court found that Rockstar Games borrowed just enough of the strip club’s trademark to be considered “artistic”, and its use did not cross the line into exploitation.  As for any possible confusion that might occur, the court had this to say: