Petitions of the Week
By Andrew Hamm
on March 19, 2021
at 4 p.m.
This week we’re highlighting certification filings calling on the Supreme Court to consider, among other things, when the first amendment will protect a video game’s digital image from the similarity of another without their consent, and when is the Effective Date for a Veteran’s Achievement Award Disability begins.
Lenwood Hamilton is a retired professional soccer player and wrestler. His resemblance also appears as a fictional character in the video game “Gears of War”. Hamilton sued the game company and other defendants for violating his publicity rights. In response, the defendants called for the first amendment to be protected. The US Court of Appeal for the 3rd circuit settled the dispute with the “Transformative Use” test. Recognizing that Hamilton and the character have the same skin colors, facial features, hairstyles, body shapes, and voices, the 3rd Circle nonetheless noted differences in personality and occupation (Hamilton never served in the military or fought aliens), the Hamilton’s similarity Have “changed” so that it has primarily become an expression of the accused. “Among the arguments in his petition, Hamilton claims that the 3rd Circuit’s expansive testing could enable shoot-em-up games involving the Dalai Lama or CGI porn films by famous actresses. The case is Hamilton versus Speight.
After the Department of Veterans Affairs has determined that a veteran deserves a disability benefit for an impairment causally related to illness or injury while serving in the military, the effective date of the award will depend on when the veteran made the benefit. In 1996, Robert Sellers submitted a standard disability benefit form listing certain physical ailments and other “disabilities while on active service.” At the time, the VA Sellers granted physical benefits, but did not evaluate him for psychiatric conditions, including the death of his friends while serving in the Vietnam War. In 2009, Sellers looked for benefits specific to the psychiatric symptoms he was receiving. His petition in Sellers against McDonough concerns the effective date of those benefits – 1996 or 2009. The US Federal Circuit Court of Appeals, which has exclusive jurisdiction over the Veterans Claims Court, ruled that 2009 was the effective date because The Form 1996 von Sellers did not identify any psychiatric conditions for which he was claiming benefits. Seller claims that the form is not dispositive and that the VA should have examined its impairments comprehensively in 1996.
These and other petitions of the week are listed below:
Eagle Trust Fund v US Postal Service
Problems: (1) Whether the Postal Reorganization Act of 1970 implicitly prohibits review of the Non-Administrative Procedure Act, including allegations of arbitrary and capricious behavior or failure to comply with the U.S. Postal Service’s own rules; and (2) whether the PRA violates Article III, which governs judicial review of USPS decisions.
Hamilton v. Speight
Questions: (1) Whether the first adjustment right to freedom of expression protects the use of a person’s actual likeness without permission when balanced against that person’s property, privacy, and dignity against the unauthorized use of their likeness; and (2) whether the right to freedom of expression after the first change protects the unauthorized use of a person’s face and voice in a game by a video game manufacturer.
Ericsson Inc. v TCL Communication Technology Holdings Ltd.
Problems: (1) Is there an exception for summary judgment decisions that relate solely to “legal issues”, notwithstanding the customary rule that a pre-trial rejection of a summary judgment application cannot be reviewed on appeal? and (2) whether an order rejecting a summary judgment may be reviewed in the discretion of the appeals court regardless of failure by either party to obtain final judgment on those grounds Federal Code of Procedure 50.
California Parents for Compensating Classroom Materials v. Torlakson
problem: Whether the freedom of practice clause allows the government to choose a religion for unfavorable treatment as long as it does not “materially burden” religious practice.
Doe Company v United States
Problems: (1) Whether the essential interest of a responding party in a disclosure order that directs an uninterested third party to submit documents is an appeal jurisdiction according to Perlman versus the United Statesif this interest is lost without immediate review of the appeal; and (2) whether a federal court lacks specific personal jurisdiction to enforce a subpoena addressed to a foreign recipient and requiring the production of documents unrelated to the recipient’s contacts with the United States.
Seller v. McDonough
problem: Whether, if a veteran has filed a disability benefit claim, the veteran’s claim includes all reasonably identifiable terms in the veteran’s service record.