Erin L. Webb
Two video game publishers have recently been targets of lawsuits alleging that their video game and box art infringed upon tattoo artists’ copyrights. Electronic Arts (EA) has been sued over the 2004 title NFL Street, with star athlete Ricky Williams — and his tattoo — prominently figured on the front of the box. The tattoo artist alleges that EA did so without his permission and in infringement of his copyright to the tattoo design. Another artist sued THQ, publisher of UFC Undisputed 3, alleging that the in-game model of Ultimate Fighting Championship fighter Carlos Condit used a copyrighted tattoo design without permission. These types of lawsuits may give rise to coverage under the target companies’ liability insurance policies, which could help to defray the costs of defending against those lawsuits and potentially the costs of any resulting liability or settlement.
Though policy wordings may differ, in general, most comprehensive general liability (CGL) policies cover “personal and advertising injury liability.” If the policyholder company is sued, and the claims involve “advertising injury” as defined by the policy, the policyholder is potentially entitled to a defense and indemnity for any liability. Though some policies contain exclusions for copyright infringement, an exception to that exclusion may grant coverage back for “infringement . . . in your ‘advertisement’, of copyright, trade dress or slogan.”
Courts have found coverage under this type of language when the alleged injury occurs by virtue of the advertising, and have denied coverage when an allegedly infringing product is the subject of an advertisement. If the targeted game publisher can show that the plaintiff’s allegations involve the way in which it advertised its product, it may be able to receive coverage. But if a plaintiff alleges that a product itself infringes on a copyright, later advertising of that product might not suffice to bring the claim under this type of coverage. Here, if the alleged infringement appears on the box advertising the product, the claims against the company may be entitled to coverage under the “trade dress” language contained in the exception as well.
Media liability insurance policies, an industry-specific type of insurance, may provide coverage as well. Though the wording of these policies tends to vary, media liability policies usually provide coverage for infringement of copyright or trademark.