App developer RC3 has filed a pre-emptive lawsuit against Justin Bieber, arguing that its parody game based on the pop artist is protected by the First Amendment and not a violation of his trademark.
The company's claim refers to a U.S. Supreme Court ruling last June
that video games qualify for First Amendment protection -- receiving the same freedom of speech rights as books, music and movies -- when it struck down a California law restricting the sale of violent games to minors.
RC3's lawsuit is a response to the cease-and-desist letter Bieber's attorneys sent two weeks ago threatening to sue if its Joustin' Beaver
iOS and Android games weren't taken down from their respective stores. The firm said RC3 had no right to use the musician's name, image, or likeness in connection with the game.
Bieber's attorneys accused the company of "trademark infringement, unfair competition under the Lanham Act and under state law, dilution, false designation of origin, passing off, misappropriation of name for commercial purposes, misrepresentation, violation of publicity, and interference with ... contractual obligations to third parties."
The developer admits that its game is inspired by Bieber, but it says the game does not "infringe, dilute, or otherwise violate the rights of Bieber," as parodies of public figures, such as a famous pop music star, are protected as free speech under the First Amendment to the U.S. Constitution.
In its complaint
filed with a Florida District Court last week, Jacksonville-based RC3 says it discussed the matter with Bieber's attorneys and attempted to explain that the purported parody in no way committed any of the alleged violations, but that those discussions indicated a resolution between the two parties was unlikely.
With the pre-emptive lawsuit, RC3 is seeking a declaration from the court that Joustin' Beaver
isn't infringing, diluting, passing off, or misrepresenting Bieber's trademark.
The game in which players take on the role of a Bieber-esque beaver as he jousts "Photo-hogs" and signs "otter-graphs" remains available for sale on the iOS and Android marketplaces.