Defendants argue that Plaintiffs’ claims must fail because they are preempted by the First Amendment and because Plaintiffs cannot make out a prima facie case. The Court will address each argument in turn. 1. First Amendment The Sixth Circuit applies the Rogers test to Lanham Act claims. See Parks, 329 F.3d at 451-52 (“Rogers is the best test for balancing Defendants’ and the public’s interest in free expression under the First Amendment against [Plaintiffs] and the public’s interest in enforcement of the Lanham Act.”). Under this test, “the Lanham Act should be applied to artistic works only where th g] until after they purchase and play the Game. Even then, there is no guarantee that a consumer will actually [encounter] the [Song].” E.S.S. Entertainment, 444 F.Supp.2d at 1044, 1048 (<HOLDING>). And if a consumer does encounter the Song, it
holding that video game maker defendants have met both requirements of the rogers balancing test and are entitled as a matter of law to a first amendment defense to plaintiffs lanham act claims holding that the video games at issue are expressive and qualify as speech for purposes of the first amendment holding that a video game clearly qualifies as an artistic work entitled to first amendment protection holding that where a party claims a document is privileged and the trial court fails to conduct an in camera review or balancing test the trial court has departed from the essential requirements of the law holding that the proper test for balancing national security interests with a persons due process rights is the mathews balancing test