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PESINA v. MIDWAY MFG. CO.
948 F.Supp. 40 (1996)
Daniel PESINA, Plaintiff,
v.
MIDWAY MANUFACTURING COMPANY, a Delaware corporation; Williams Electronics Games, Inc., a Delaware corporation; Nintendo of America, Inc., a Washington corporation; SEGA of America, Inc., a California corporation; Acclaim Entertainment, Inc., a Delaware corporation, Defendants.
No. 94 C 5152.
United States District Court, N.D. Illinois, Eastern Division.
December 9, 1996.
Robert G. Riffner, Riffner, Freeman & Scott, Chtd., Schaumburg, IL, for Plaintiff.
Gerald O. Sweeney, Jr., Lord, Bissell & Brook, Chicago, IL, Steven P. Mandell, Davidson, Goldstein, Mandell & Menkes, Chicago, IL, Joseph A. Yanny, Fischbach, Perlstein, Lieberman & Yanny, Los Angeles, CA, for Defendants.
MEMORANDUM OPINION AND ORDERBUCKLO, District Judge. The plaintiff, Daniel Pesina, brought suit against the defendants, Midway Manufacturing Company, Williams Electronics Games, Inc. ("Midway defendants"), Nintendo of America, Inc. ("Nintendo"), Sega of America, Inc. ("Sega"), and Acclaim Entertainment, Inc. ("Acclaim") under various theories. The defendants move for summary judgment. For the following reasons, the motion is granted. I.Summary judgment is appropriate if there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. The fact that Mr. Pesina did not respond to the summary judgment motion1 does not change the court's inquiry, Tobey v. Extel/JWP, Inc.,985 F.2d 330, 332 (7th Cir.1993), but simplifies it. I deem admitted all facts set forth in the defendants' 12M statements, because by failing to file a response, Mr. Pesina failed to controvert those facts. N.D.Ill. Local R. 12N(3).2 Mr. Pesina is a martial artist. The defendants are in various ways involved in the creation, manufacture, marketing, and distribution of home video games, Mortal Kombat and Mortal Kombat II, and related products. The Midway defendants created the games and hold their copyrights. There are coin-operated arcade and home versions of the games. In 1991, 1992, and 1993, Mr. Pesina was hired to model for characters of the coin-operated arcade Mortal Kombat and Mortal Kombat II. His movements were either videotaped or captured by a computer, and, after an extensive editing process, incorporated
into the games. The Midway defendants licensed Acclaim to sell the coin-operated arcade games in the home video market. Acclaim created the home version of Mortal Kombat and Mortal Kombat II by reformatting the coin-operated arcade software to render it compatible with media used in the home, the process being analogous to formatting a motion picture for VCR viewing. Acclaim also adopted Mortal Kombat and Mortal Kombat II for home use on the game systems designed by Nintendo and Sega, who, in turn, manufactured the games according to Acclaim's specifications. In his complaint, Mr. Pesina alleges that all defendants used his persona, name, and likeness without authorization in the home version of Mortal Kombat and Mortal Kombat II and the related products, thereby infringing his common law right of publicity and violating Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), Illinois Consumer Fraud and Deceptive Business Practices Act ("Consumer Fraud Act"), 815 ILCS 505/2 (1993), and Illinois Uniform Deceptive Trade Practices Act ("Deceptive Trade Practices Act"). 815 ILCS 510/2 (1993). He also alleges that the Midway defendants breached their duties of good faith and fair dealing, and seeks quantum meruit recovery from them. All defendants move for summary judgment.
1. Mr. Pesina's response was due by September 13, 1996. 2. The Midway defendants filed a summary judgment motion and an accompanying 12M statement. Nintendo and Sega filed a separate summary judgment motion and 12M statement. Subsequently, Nintendo, Sega, and Acclaim joined the Midway defendants' motion and statement. 3. The defendants insist that this common law claim is preempted by Section 301(a) of the Copyright Act. 17 U.S.C. § 301. This Circuit has suggested that if an employee has contractually limited the media in which his performance may be shown by the employer, should the employer exceed this authority, the employee's right of publicity claim is not preempted. Baltimore Orioles v. Major League Baseball Players,805 F.2d 663, 679 n. 29 (7th Cir.1986). Given the ambiguous text of the release forms Mr. Pesina signed, I will assume, arguendo, that his right of publicity claim is not preempted.
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