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Petitions of the week

Video game characters and veterans’ benefits

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, when the First Amendment protects a video game’s digital image of someone else’s likeness without that person’s consent and when the effective date for a veteran’s award for disability benefits begins.

Lenwood Hamilton is a former professional football player and wrestler. His likeness also appears as a fictional character in the video game “Gears of War.” Hamilton sued the game company and other defendants for violating his right of publicity. In response, the defendants claimed the protection of the First Amendment. The U.S. Court of Appeals for the 3rd Circuit resolved the dispute using the “transformative use” test. Recognizing that Hamilton and the character have the same skin colors, facial features, hairstyles, builds and voices, the 3rd Circuit nevertheless noted differences in personality and profession (Hamilton has never served in the military or fought aliens) that rendered Hamilton’s likeness “so transformed that it has become primarily the defendant’s own expression.” Among the arguments in his petition, Hamilton maintains that the 3rd Circuit’s expansive test could allow “shoot-em-up” games involving the Dalai Lama or CGI pornographic films of famous actresses. The case is Hamilton v. Speight.

After the Department of Veterans Affairs determines that a veteran deserves disability benefits for an impairment causally connected to a disease or injury suffered during military service, the effective date of the award depends on when the veteran initiated the claim for benefits. In 1996, Robert Sellers filed a standard form for disability benefits in which he listed specific physical ailments and other “disabilities occurring during active duty service.” At that time, the VA gave Sellers benefits for physical conditions, but did not evaluate him for any psychiatric conditions from, among other experiences, his friends’ deaths while serving in the Vietnam War. In 2009, Sellers sought benefits specifically for psychiatric symptoms, which he received. His petition in Sellers v. McDonough concerns the effective date for those benefits – 1996 or 2009. The U.S. Court of Appeals for the Federal Circuit, which has exclusive jurisdiction over the Court of Appeals for Veterans Claims, ruled that 2009 was the effective date because Sellers’ 1996 form did not identify any psychiatric conditions for which he sought benefits. Sellers maintains that the form is not dispositive and that the VA in 1996 should have examined his impairments comprehensively.

These and other petitions of the week are below:

Eagle Trust Fund v. U.S. Postal Service
Issues: (1) Whether the Postal Reorganization Act of 1970 impliedly bars non-Administrative Procedure Act review, including claims of arbitrary-and-capricious conduct or failure to follow the U.S. Postal Service’s own rules; and (2) whether the PRA violates Article III as applied to bar judicial review of USPS adjudications.

Hamilton v. Speight
Issues: (1) Whether the First Amendment right to free speech protects using a person’s actual likeness without permission when weighed against that person’s property, privacy and dignity rights against unauthorized use of his likeness; and (2) whether the First Amendment right to free speech protects a video game maker’s unauthorized use of a person’s face and voice in a game.

Ericsson Inc. v. TCL Communication Technology Holdings Ltd.
Issues: (1) Whether, notwithstanding the ordinary rule that a pretrial denial of a motion for summary judgment is not reviewable on appeal, there is an exception for summary-judgment decisions that turn solely on “legal issues”; and (2) whether an order denying summary judgment can be reviewed following trial, at the discretion of the court of appeals, notwithstanding a party’s failure to seek judgment as a matter of law on those grounds under Federal Rule of Civil Procedure 50.

California Parents for the Equalization of Educational Materials v. Torlakson
Issue: Whether the free exercise clause permits the government to single out a religion for disfavored treatment so long as it does not “substantially burden” religious exercise.

Doe Company v. United States
Issues: (1) Whether an appealing party’s substantial interest in a disclosure order directing a disinterested third party to produce documents provides appellate jurisdiction under Perlman v. United States, when that interest will be lost absent immediate appellate review; and (2) whether a federal court lacks specific personal jurisdiction to enforce a subpoena that is directed to a foreign recipient and demands the production of documents that are unrelated to the recipient’s contacts with the United States.

Sellers v. McDonough
Issue: Whether, when a veteran has submitted an application for disability benefits, the veteran’s claim encompasses all reasonably identifiable conditions within the veteran’s service records.

Recommended Citation: Andrew Hamm, Video game characters and veterans’ benefits, SCOTUSblog (Mar. 19, 2021, 4:00 PM),