The opinion of the court was delivered by: Hon. Jane Magnus-Stinson, Judge United States District Court Southern District of Indiana
Presently before the Court is Defendant Electronic Arts, Inc.'s ("EA"), motion for judgment on the pleadings. [Dkt. 89.]
"After the pleadings are closed.a party may move for judgment on the pleadings." Fed. R. Civ. Pro. 12(c). Where, as here, a motion for judgment on the pleadings attacks the sufficiency of the complaint, the motion "is subject to the same standard as a motion for dismissal for failure to state a claim [under Rule 12(b)(6)]." Thomason v. Nachtrieb, 888 F.2d 1202, 1204 (7th Cir. 1989). Under that standard, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quotation and citation omitted).
When evaluating the plausibility of the plaintiff's claim, the plaintiff "receives the benefit of reasonable inferences" that arise from the well-pleaded allegations. Pirelli Armstrong Tire Corp. Retiree Med. Benefits Trust v. Walgreen Co., 631 F.3d 436, 447 (7th Cir. 2011) (citation omitted). Denials in the answer don't count, nor does an assertion of an affirmative defense, un- less the plaintiff's own allegations establishes it, see Cancer Found., Inc. v. Cerberus Capital Mgmt., LP, 559 F.3d 671, 674-675 (7th Cir. 2009) ("Dismissing a complaint as untimely at the pleading stage is an unusual step, since a complaint need not anticipate and overcome affirmative defenses, such as the statute of limitations. But dismissal is appropriate when the plaintiff pleads himself out of court by alleging facts sufficient to establish the complaint's tardiness." (citation omitted)).
II. ALLEGATIONS IN THE COMPLAINT
As many people know, John Dillinger was a notorious Indiana gangster who terrorized the Midwest for several years, until he was gunned down by the F.B.I. in a Chicago firefight, in 1934. [See dkt. 63 at 1.]
Through the Complaint, Plaintiff Dillinger, L.L.C., alleges that it has registered two U.S. trademarks for "John Dillinger." [Dkt. 1 ¶15.] And thanks to a relatively recent Indiana statute, which recognized a descendible right of publicity, the Plaintiff also claims the right to control Mr. Dillinger's "personality" rights for commercial purposes-that is, his "name, voice, signature, photograph, image, likeness, distinctive appearance, gestures, [and] mannerisms." [Id. ¶12.] It claims to have acquired those publicity rights by assignment from the heirs of Mr. Dil-linger, who died intestate. [See id. ¶14; dkt. 99 at 6 n.4.]
The Plaintiff has sued EA for including unauthorized references to John Dillinger in its series of videogames based upon The Godfather novel and subsequent film series. [Dkt. 1 ¶¶17-18.] The references occur in the form of the names of two types of weapons that players can use to facilitate their own virtual crime spree as a mob boss. One is the "Dillinger Level Three Tommy Gun", which players can earn at no extra cost through game play. [Id. ¶19.]
Additionally, players of one particular iteration of the videogame series, "The Godfather II," can purchase upgraded weapons over the internet to enhance their effectiveness as virtual mob bosses. [See id. ¶22.] The Complaint includes a screenshot of an online store operated by either of two third parties, where users could buy various weapons upgrades for the game. One upgrade was the "Level 4 Firearms" pack, which retailed for $4.00. [Id.] It was described on the third-party websites in part as follows: "These five firearms are exactly what a Don needs to put his family on top! Each weapon can be equipped by you and your family. This collection includes the Modern Dillinger [Tommy Gun]...." [Id.]
The Plaintiff alleges that by continuing to include the Dillinger Level Three and Modern Dillinger in its "The Godfather" games, EA has continued to knowingly and willingly violate the Plaintiff's trademark in John Dillinger and its control over Mr. Dillinger's personality rights, despite being put on notice of the Plaintiff's objections. [Id. ¶¶ 26-27.]
The Plaintiff has raised six causes of action against EA, each of which stems from the references to the "Dillinger" weapons in EA's videogames. Count I accuses EA of violating Indiana's right-of-publicity statute, Ind. Code §§ 32-36-1-1 et seq. Count II says that EA has committed unjust enrichment. Counts III and V, which the parties treat together and so will the Court, accuse EA of trademark infringement. Count IV alleges unfair competition. Finally, Count VI raises a claim under Indiana's Crime Victim Act (the "ICVA"), Ind. Code § 34-24-3-1.
A.Count I: Right-of-Publicity Statute
In 1994, about sixty years after John Dillinger died, the Indiana General Assembly enacted the right-of-publicity statute. As is relevant here, it partially changed the common-law rule that "[w]hat a man does while alive becomes a part of history which survives his death" and is subject to "[c]omment, fictionalization and even distortion" after his death, Maritote v. Desilu Productions, Inc., 345 F.2d 418, 420 (7th Cir. 1965). The Indiana General Assembly decreed that "[a] person may not use an aspect of a personality's right of publicity [including the person's name] for a commercial purpose during the personality's lifetime or for one hundred (100) years after the date of the personality's death without having obtained previous written consent from a person" vested with control of the personality's right to publicity. Ind. Code § 32-36-1-8(a).
Of the bases on which EA relies to challenge the right-of-publicity claim, its statute-of-limitations argument is the easiest to resolve here. Relying only on a statement in the Plaintiff's response brief-rather than the allegations of the Complaint itself-EA argues that the Plaintiff has conceded missing the two-year statute of limitations governing the claim, [dkt. 101 at 11 (arguing that the Plaintiff claimed misappropriation first accrued in 2006 but did not file suit until 2009)]. By surreply, the Plaintiff argues (among other things) that the continued sales of the games makes its right-of-publicity claim a "continuing wrong," such that the statute of limitations is tolled until the sales stop, see Yoost v. Zalcberg, 925 N.E.2d 763, 771 (Ind. Ct. App. 2010) ("The doctrine of continuing wrong applies where an entire course of conduct combines to produce an injury. When the doctrine attaches, the statute of limitations begins to run at the end of the continuing wrongful act." (citations omitted)). Because of the briefing posture, however, EA hasn't had a chance yet to respond to the Plaintiff's legal authority presented via surreply, thus depriving the Court of the benefit of adversarial presentation. Rather than permit additional briefing, the Court will apply the general rule that a statute-of-limitations argument should be raised via a motion for summary judgment, especially because EA's argument doesn't actually depend on the allegations in any of the Plaintiff's pleadings, see Fed. R. Civ. Pro. 7(a) (not including briefs in the list of recognized pleadings). Accordingly, to the extent that EA seeks a dismissal on statute-of-limitations grounds on this first count of the Complaint (or any other), the Court denies the motion without prejudice.
EA makes two other arguments against the right-of-publicity claim, which are both properly raised through a motion for judgment on the pleadings: that the statute doesn't apply to personalities who died before the statute was enacted and, even if it did, that the "literary works" exception included in the statute covers videogames, Ind. Code § 32-36-1-1(c)(1)(A) (exempting "[l]iterary works, theatrical works, musical compositions, film, radio, or television programs"). As this Court possesses only supplemental jurisdiction over Count I,*fn1 the Court must predict how the Indiana Supreme Court "would decide the case, and decide it the same way." Mindgames, Inc. v. W. Publ'g Co., 218 F.3d 652, 655 (7th Cir. 2000) (citations omitted). The Indiana Supreme Court, however, hasn't ever had occasion to consider either issue, nor has the Indiana Court of Appeals, whose decisions are good indicators of what the state supreme court would decide, Pisciotta v. Old Nat'l Bancorp, 499 F.3d 629, 635 (7th Cir. 2007).*fn2 The Court must, therefore, base its decisions on whatever authority is available. See id.
1.Whether the Statute Applies to Personalities Who Died Before 1994
In support of its claim that the right-of-publicity statute doesn't apply to personalities like John Dillinger who died before the statute's enactment, EA directs the Court to Shaw Family Archives, Ltd. v. CMG Worldwide, Inc., 486 F. Supp. 2d 309 (S.D.N.Y. 2007). In that case, the court rejected an attempt by an entity claiming to have obtained, via will, Marilyn Monroe's right of publicity. The court reasoned that because publicity rights terminated at death at common law, Ms. Monroe's death before the Indiana statute was enacted meant that she lacked any publicity right to devise in her will. Id. at 314 ("Thus, at the time of her death in 1962 Ms. Monroe did not have any post-mortem right of ...