Petitions of the week
By Andrew Hamm
March 19, 2021
at 4:00 p.m.
This week, we highlight cert’s motions that ask the Supreme Court to consider, among other things, when the First Amendment protects a video game’s digital image from someone else’s likeness without the consent of that person and when the effective date of a veteran’s award for disability benefits begins.
Lenwood Hamilton is a former professional soccer player and wrestler. His likeness also appears as a fictional character in the “Gears of War” video game. Hamilton sued the game company and other defendants for violating his right of publicity. In response, the defendants claimed First Amendment protection. The United States Court of Appeals for the 3rd Circuit resolved the dispute using the “transformative use” test. Acknowledging that Hamilton and the character share similar skin tones, facial features, hairstyles, builds, and voices, the 3rd Circuit nonetheless noted differences in personality and occupation (Hamilton never served in the military or fought in aliens) that made Hamilton’s likeness “so transformed”. that it has become primarily the defendant’s own expression. Among the arguments in his petition, Hamilton argues that the expansive 3rd Circuit test could allow shoot-em-up games involving the Dalai Lama or CGI pornographic films of famous actresses. The case is Hamilton vs. Speight.
Once the Department of Veterans Affairs has determined that a veteran is eligible for disability benefits for an impairment causally related to an illness or injury sustained during military service, the effective date of the award depends on when the veteran applied for benefits. In 1996, Robert Sellers filed a standard form for disability benefits in which he listed specific physical ailments and other “disabilities arising during active duty”. At that time, the VA was granting Sellers benefits for physical conditions, but not evaluating him for psychiatric conditions resulting from, among other experiences, the death of his friends while serving in the Vietnam War. In 2009, Sellers applied for benefits specifically for psychiatric symptoms, which he received. His petition in Sellers v. McDonough relates to when these benefits began – 1996 or 2009. The United States Court of Appeals for the Federal Circuit, which has exclusive jurisdiction over the Court of Appeals for Veterans’ Claims, has ruled that 2009 was the effective date because Sellers’ 1996 form did not identify any psychiatric condition for which he claimed benefits. Sellers argue that the form is not conclusive and that the VA in 1996 should have considered its deficiencies comprehensively.
These and other petitions of the week are below:
Eagle Trust Fund v. US Postal Service
Problems: (1) Whether the Postal Reorganization Act of 1970 implicitly prohibits review of the law of non-administrative procedure, including allegations of arbitrary and capricious conduct or disregard of the United States Postal Service’s own rules; and (2) whether the PRA violates Article III as applied to prohibit judicial review of USPS decisions.
Hamilton vs. Speight
Questions: (1) Does the First Amendment right to free speech protect the use of a person’s real likeness without permission when balanced against the rights of property, privacy, and dignity of that person against the unauthorized use of his likeness; and (2) whether the First Amendment’s right to free speech protects a video game manufacturer’s unauthorized use of a person’s face and voice in a game.
Ericsson Inc. v. TCL Communication Technology Holdings Ltd.
Problems: (1) If, notwithstanding the ordinary rule that a pre-trial dismissal of a motion for summary judgment is not reviewable on appeal, is there an exception for summary judgment decisions which relate only to on “questions of law”? and (2) whether an order denying summary judgment may be reviewed after trial, at the discretion of the appellate court, notwithstanding a party’s failure to seek judgment at law on the grounds provided by Federal Rule of Civil Procedure 50.
California Parents for Educational Materials Equalization c. Torlakson
Publish: whether the free exercise clause allows the government to single out a religion for disadvantaged treatment as long as it does not “substantially burden” religious exercise.
Doe Company v. United States
Problems: (1) Whether an appellant’s substantial interest in a disclosure order requiring a disinterested third party to produce documents confers appellate jurisdiction under Perlman v. United States, when this interest will be lost in the absence of an immediate review on appeal; and (2) if a federal court lacks specific personal jurisdiction to enforce a subpoena issued to a foreign recipient and compel the production of documents unrelated to the recipient’s contacts with the United States.
Sellers v. McDonough
Publish: If, when a veteran has submitted an application for disability benefits, the veteran’s application encompasses all reasonably identifiable conditions in the veteran’s service records.