Not until after the First World War did aluminum find its transformative use.
"Here the book clearly is a transformative use of the old 'Catcher in the Rye,' " he said.
Here the freedom of speech and "transformative use" defenses would wobble – just as they did for Electronic Arts in 2013, when the publisher was sued by college football players when their likenesses were used in the 2008 game, NCAA Football.
Content creators will often seek defense against publicity rights claims via the "transformative use" test, which seeks to prove that that the likeness was used to create a wholly new and original work.
"The mere fact that there is a character looking more or less like a celebrity in a game is not a silver bullet on its own," says Purewal. "You would still have the First Amendment and transformative use issues".
However, if Lohan's legal team manages to convince a judge that the Jonas character is unmistakably a depiction of the actor, the situation changes – "transformative use" is less reliable when the depiction is specifically for monetary gain.
One of the central questions was whether Mr. Fairey's creation, which became ubiquitous on street corners and T-shirts during and after Mr. Obama's campaign, constituted a "transformative" use of the photograph, a use that is allowed under the law so that creative expression is not stifled.
One central question was whether Mr. Fairey's creation, which became ubiquitous on street corners and T-shirts during and after Mr. Obama's campaign, constituted a "transformative" use of the photograph, a use that is allowed under the law so that creative expression is not stifled.
The "transformative use" test adopted by the Third and Ninth Circuit is a multifactor test and is very fact-specific.
The outcome is murky, to say the least, as courts have yet to apply the transformative use test in an MMO setting or to user-generated content.
