By: Miranda Glisson

            Recently, I’ve developed a growing interest in car racing – particularly open-wheel, sports car, and touring car disciplines. As a result, I entered the world of Forza video games, including Forza Horizon and Forza Motorsport. While I practiced my driving skills in a not-too-fancy simulator playing Forza Motorsport, I wondered about the challenges Forza and other video games must face with licensing trademarked subject matter like cars after the AM General LLC v. Activision Blizzard, Inc. decision. 

IP Licensing in Video Games

Video games represent the pinnacle of interactive intellectual property, often requiring developers and producers to secure numerous licenses for a single game. Video game licensing refers to an agreement between a video game producer and an external company granting the producer permission to use the company’s intellectual property in their game. Game producers may employ licenses to use copyrighted and trademarked works in their games.

            Video game producers and external companies negotiate and agree upon each license.  Each license can have differing stipulations depending on how an external company wants their copyrighted or trademarked logo/work used within the game, ensuring the user’s perception of the external company’s work aligns with that company’s desire in how they are perceived.

Video game developers may want to obtain permission to use a third party’s trademark in their game to bring their creative vision to life. Incorporating trademarks from other companies can enhance realism, enable parody, or support commentary. However, obtaining the permission to use a trademark in a video game varies in difficulty, and the licenses can boast specific terms and conditions regarding use, scope, duration, quality control, and fees.

AM General LLC v. Activision Blizzard, Inc.

Trademark licenses may not be required when video game developers use the trademarked subject matter artistically or expressively. When one’s trademark is used in an artistic or expressive way by another, courts have narrowly interpreted the Lanham Act (the primary federal statute governing trademark law in the United States) to avoid suppressing protected speech under the First Amendment. In AM General LLC v. Activision Blizzard, Inc., AM General brought a trademark infringement claim against Activision Blizzard for using Humvees in their game, Call of Duty, without obtaining permission. The court determined the inclusion of Humvees in the game was intended to enhance realism, deeming their use as an expressive form of creativity. As a result, Activision Blizzard was within its rights to incorporate real-world subjects for artistic purposes and thus did not infringe upon AM General’s trademark.

AM General LLC v. Activision Blizzard, Inc. had significant impacts on video game licensing by establishing that real-world objects that are depicted in video games enhance artistic realism are protected under the First Amendment. As a result, video game developers do not need to obtain a license from trademark holders if the use is to enhance artistic realism. However, it is unclear how far the holding of AM General LLC v. Activision Blizzard, Inc. reaches. A major factor in the AM General LLC v. Activision Blizzard, Inc. decision was that consumer confusion was unlikely between the plaintiff’s Humvees and the defendant’s game, as there was no evidence of significant market overlap or direct competition. Accordingly, it would be expected that if there was market or consumer overlap between one party’s work and the other’s trademark, there would not be protected use of that mark, and therefore, a license would be required.

            I, as a very novice video game player, enjoy video games’ depictions of realism as it enhances immersion. As video games incorporate brands and products into their games to enhance realism, developers are required to navigate when trademark licensing agreements are required or not. Decisions like AM General LLC v. Activision Blizzard, Inc. show that trademarks can be used if they are for artistic or expressive purposes, if there is little likelihood of consumer confusion. However, this boundary is uncertain and likely creates difficulty for video game developers as, ultimately, video games are a mix of art, collaboration, and commerce, creating difficult intellectual property challenges.

#videogames #artisticrealism #trademarks

By: Penny Pathanaporn

Introduction

Have you ever had a shade match done at Sephora by a sales associate or used a virtual try-on tool on a cosmetics website to visualize how a certain lipstick might look on your features? These tools are integral to the shopping experience; they help shoppers like you and me decide which products to add to our carts and which products to skip. But what if I told you that these tools could also raise important legal questions relating to biometric data collection? 

Overview of U.S. Biometric Privacy Laws 

In the United States, only state-level legislation that specifically addresses biometric privacy has been enacted; no federal law currently does so. Since 2023, at least eleven states have introduced legislation to regulate the collection of biometric data by private companies. However, only three states—Washington, Texas, and Illinois—have enacted legislation that governs the regulation of biometric privacy. Out of the four laws, Illinois’ Biometric Information Privacy Act (BIPA) is the most robust as it allows plaintiffs to bring private lawsuits for BIPA violations and claim statutory damages. 

While Washington’s My Health My Data Act (MHMDA) also allows plaintiffs to bring private lawsuits, plaintiffs can only claim actual damages. Actual damages are calculated by the degree of loss or harm a plaintiff experiences. Unfortunately, in cases of non-consensual data collection, actual damages can be fairly difficult to prove. Texas’ biometric privacy law—namely, the Capture or Use of Biometric Identifier Act (CUBI)—is also fairly limited in scope. CUBI only covers the collection of biometric information for commercial use and does not provide a private right of action to individuals. 

What is BIPA?

Private entities that conduct business in Illinois–whether they are incorporated or headquartered in the state–are subject to BIPA. While “person[s], partnership[s], corporation[s], limited liability compan[ies] . . . [and] other group[s]” constitute private entities under BIPA, state and local governments, governmental agents, and government contractors do not. Under BIPA, the following identifiers constitute biometric information: “fingerprints, voice prints, retina scans, hand scans, or face geometry.” 

Generally, BIPA prohibits private entities from selling or deriving profits from individuals’ biometric data. Additionally, before collecting biometric information, BIPA requires private entities to (1) inform individuals of the type of data being obtained, (2) provide individuals with written information on why the data is being collected and the duration for which the data will be stored, and (3) acquire individuals’ consent in writing. 

Charlotte Tilbury Beauty Class Action Lawsuit

From 2019 and 2023, Charlotte Tilbury Beauty—a cosmetics company—offered virtual try-on tools such as “Foundation Shade Finder,” “Highlight Shade Finder,” and “Blush Finder” on their website. When using the virtual try-on tools, consumers were prompted to enable camera access and allow the website to scan their face in real time before digital makeup effects were rendered.  

In 2022, consumers with ties to Illinois filed a class action lawsuit against Charlotte Tilbury Beauty, alleging that the company violated BIPA by collecting biometric information without prior consent. Plaintiffs claimed that when using the virtual try-on tools, the cosmetics company’s website failed to inform or disclose to them that their facial geometry scans were being captured, archived, and used. 

In 2024, Charlotte Tilbury Beauty reached a $2.925 million settlement. As part of the settlement, individual plaintiffs may be entitled to compensation ranging from $700 to $1,100. Interestingly, settlement amounts for biometric data privacy cases can reach as high as $650 million, as seen in the class action lawsuit against Facebook.

E.L.F. Beauty Class Action Lawsuit

Similar to Charlotte Tilbury Beauty, another cosmetics company, E.L.F. Beauty, has also recently come under legal scrutiny for their virtual try-on tool. Consumers of E.L.F. Beauty filed a class action lawsuit against the company in 2024. Plaintiffs alleged that the beauty company collected, saved, and used their facial geometry through the virtual try-on tool without obtaining consumer consent. The District Court for the Northern District of Illinois Eastern Division allowed the lawsuit to proceed by denying E.L.F. Beauty’s request to compel arbitration. 

Although the outcome of this case remains uncertain, the class action lawsuits filed against both Charlotte Tilbury Beauty and E.L.F Beauty show that cosmetics companies must proceed with caution when conducting business in states with robust biometric privacy laws.

BIPA Amendment: A Silver Lining? 

Class action lawsuits arising from BIPA violations can be quite costly for private companies, especially if statutory damages are calculated per violation. The Illinois legislature alleviated this concern by amending BIPA in August 2024. Under the amendment, BIPA violations are calculated per individual rather than per instance of data collection. This means that, in all circumstances, each plaintiff is only entitled to one award of statutory damages. Statutory damages amounts are set by statutes and are not determined by the degree of loss or harm a plaintiff experiences.  

Although the amendment provides a silver lining for private entities such as Charlotte Tilbury Beauty and E.L.F. Beauty, significant uncertainties still remain when it comes to BIPA-related litigation. Judges in the Northern District of Illinois have expressed contrasting views on whether the terms of the BIPA amendment should be enacted retroactively. 

For many private entities, BIPA-related litigation still poses many risks. Companies that violated BIPA before the amendment may be liable for each individual instance of biometric data collection. This uncertainty could perhaps be one of the key factors that pushed Charlotte Tilbury Beauty to enter into a hefty settlement agreement.

The Future of the Cosmetics Industry

Given how expensive litigation can be, private companies operating in states with robust biometric privacy laws should tread carefully before implementing tools that capture or archive consumers’ biometric information. Many websites already use scrollable Terms and Conditions that require consumers to check a box or provide an electronic signature to confirm that they consent to the terms. Because virtual try-on tools are integral to the beauty industry, cosmetics companies might consider implementing consent mechanisms to continue offering these services. Such mechanisms will not only protect companies from potential liability but will also enable consumers to make informed choices when shopping for beauty products.  

#BeautyIndustry #BiometricPrivacy #BIPA

By: Matthew Bellavia

When asked under oath during one of many congressional hearings, Mark Zuckerberg said:

“Senator, we consider ourselves to be a platform for all ideas”.

While this statement sounds like mere corporate virtue-signaling, it constitutes much more. When Section 230 of the Communications Decency Act was enacted in 1996, the prevailing vision of the internet was a neutral space where users could post ideas—a passive message board. Nearly three decades later, this vision fails to understand the modern internet. Today, social media platforms not only host content but actively control what content is shown to users and which posts go viral. These decisions are often made through proprietary and secret recommendation algorithms and shape what content users see and how widely it spreads. An updated, nuanced legal framework that recognizes the active role platforms play in amplifying content is necessary to improve transparency and accountability.

Section 230 Legal Framework

Section 230 was enacted in response to conflicting court decisions on platform liability. In Cubby, Inc. v. CompuServe, Inc, an online information service that provided subscribers with access to thousands of sites and over 100 forums was found not liable for libel because it did not and could not review content on the forums before it was posted. Alternatively, in Oakmont, Inc. v. Prodigy Servs. Co., an online bulletin board provider was found akin to a publisher because it selectively moderated its content and was liable for defamatory postings that were published. Clearly, there was a need for a more definitive rule. As a result, 47 U.S.C. § 230(c)(1), states: 

“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

The law was designed to encourage internet growth by protecting platforms from liability for user-generated content while allowing them to moderate in good faith. Section 230(c)(2), the “Good Samaritan” provision, specifically protects platforms that remove objectionable content. The statute distinguishes platforms from “information content providers”—those responsible, in whole or in part, for creating or developing information. Platforms materially contributing to content may lose their immunity.

Prominent Cases After Section 230

Courts interpreting Section 230 have generally reinforced broad platform immunity, prioritizing the interests of innovation and free speech at the expense of accountability. In Zeran v. AOL (1997), the plaintiff’s personal contact information was maliciously and repeatedly posted on AOL forums alongside offensive merchandise related to the Oklahoma City bombing. Despite multiple notifications, AOL failed to promptly remove the content, and the plaintiff received death threats and harassment calls. The Fourth Circuit found AOL not liable because of broad Section 230 protection, even after notice was given of the harmful content. 

In contrast, Fair Housing Council v. Roommates.com (2008) held that platforms lose immunity when requiring users to input illegal content, as Roommates.com did by prompting discriminatory preferences. Recently, the Supreme Court in Gonzalez v. Google (2023) declined to rule on whether algorithmic recommendations constitute content development under Section 230.

Algorithmic Promotion and Co-Authorship

Modern platforms do not show content chronologically but algorithmically rank and prioritize posts based on engagement metrics and user behavior. TikTok’s “For You” page curates individualized feeds via machine learning. YouTube’s autoplay and “Up Next” queues automatically recommended videos, and recommendations make up 70% of all views on the site. Facebook similarly uses proprietary signals to prioritize its News Feed.

Critics argue that algorithm design reflects editorial choices rather than passive, neutral functions. Sites actively choose which content to amplify based on revenue-driven decisions, which impact the financial interests of the platforms and their respective creators. Alternatively, these sites could argue that their implementation of personalized ranking and the various tools offered to control content feeds suggest that users take a more active role in their own curation.

Legal Implications – When Does Immunity Break?

If platforms are found to be co-authors or material contributors, the consequences could be significant. Under Section 230, immunity is lost when a platform is deemed to have helped “create or develop” unlawful content. Courts have struggled with what that means, but algorithmic editing or targeted amplification might tip the scales. One could argue that using algorithms that predictably promote harmful content could constitute content development, especially if the platform profits from the activity. Moreover, platforms monetizing harmful content via advertising may be seen as active participants rather than neutral intermediaries. The Roommates.com decision already established that platforms that require or solicit unlawful content can lose immunity. Could algorithmic design, predictably amplifying harmful content, be the next frontier?

Potential Intermediate Standards

Section 230 is commonly referred to as “The Twenty-Six Words That Created the Internet.” A full repeal of the law would destroy the current online ecosystem. Media companies simply do not have the infrastructure or resources to moderate all the content posted. For example, YouTube receives 500 hours of content uploaded every minute. The recent adoption and explosion of AI has added to this problem. Instead of repeal, intermediate reforms could pose a viable adjustment to bring the law up to date. For example, the EU’s Digital Services Act already imposes obligations on platforms to mitigate the risks of algorithmic recommendations. Other alternative solutions could be: conditioning immunity on algorithm transparency or limiting immunity for the distribution of harmful content via algorithmic design.

Practicality

Tech companies argue that narrowing Section 230 would cause over-moderation and chill innovation and free speech. This aligns further with recent movements away from proactive moderation and fact-checking. Critics respond that platforms already wield considerable power, touching all aspects of society. Requiring transparency into algorithmic content delivery could help evaluate when platforms cross into co-authorship. However, this is not something media companies are likely to agree to without a fight.

Conclusion

The internet that Section 230 was designed for is long gone. Today, algorithms blur the publisher-platform distinction by enabling sites to curate, promote, and profit from content they choose. While sites provide some tools for users to control their content, they still take a far more active role in curation than the drafters ever could have contemplated in 1996. As litigation around algorithmic content grows, Section 230 must evolve to recognize the active role platforms play in their content to increase transparency and accountability. 

#Section230 #PlatformImmunity #SocialMedia #WJLTA