Rockstar secures court win over strip club

While the wildly successful, wildly violent Grand Theft Auto series of games has sparked a number of controversies and court cases in recent years, developer Rockstar Games can now put one such case behind it. Last week, US District Court Judge Margaret Morrow sided with the studio in a civil suit brought against it by a strip club.

E.S.S. Entertainment, a Los Angeles company better known as the strip club The Play Pen, filed suit against Rockstar in April of 2005, alleging that Grand Theft Auto: San Andreas infringed on its trademarks. At issue was one of the sprawling game's East Los Santos businesses, a strip club called The Pig Pen.

According to court documents, E.S.S. Entertainment argued that the in-game club's awning and logo were too similar to The Play Pen's and that it represented a violation of trademark rights. The Pig Pen's name is written in a similar, if not identical, font, and its exterior featured the words "totally nude," which were also used by The Play Pen. Rockstar Games employees had toured the area and took reference pictures for the game, and the artists who created The Pig Pen had taken photos of The Play Pen.

To mount a successful free-speech defense in the case, Judge Morrow said Rockstar had to satisfy two criteria. First, it had to show that the use of the Play Pen-like business in San Andreas was artistically relevant.

"The Pig Pen has artistic relevance to defendants' twisted, irreverent image of urban Los Angeles," Judge Morrow said, noting that Rockstar intended not to parody the patrons of The Play Pen or make light of pigs. She ruled that Rockstar's "aim in creating East Los Santos was to evoke an image of East Los Angeles, but to tweak that image to fit the overall 'look and feel' of San Andreas, as well as the narrative of a city overrun by gangs, drug dealers, and prostitutes. Any visual work that seeks to offer an artistic commentary on a particular subject must use identifiable features of that subject so that the commentary will be understood and appreciated by the consumer."

Second, the use of the business could not "explicitly mislead consumers as to the content of the game." Basically, Rockstar had to show that the intention was not to suggest that The Play Pen created, had endorsed, or was affiliated with San Andreas. After noting that the Pig Pen location wasn't used in TV or print ads for the game, doesn't appear on the packaging, doesn't play a role in the game's missions, and that a gamer could play the game for hours and never encounter the club, Morrow ruled that Rockstar met the second criteria as well.

"As these facts show, defendants' use of the Play Pen trade dress and mark presents little, if any, chance that consumers will be misled about the content of the game," Morrow ruled.