A determination of what is newsworthy may be made as a matter of law. See Dillinger, LLC v. Electronic Arts, Inc., 795 F. Supp. 2d 829, 835 (S.D. Ind. 2011) (determining whether "literary works" exception applied at the motion for judgment on the pleadings stage). Defendants argue that under Indiana law, the term "newsworthy" is "broadly construed."

Like the determination of whether “Coins” is generic, whether the fair use defense applies involves fact-intensive determinations inappropriate for the motion to dismiss stage. Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687, 690 (7th Cir. 2012) (emphasizing that the fair use defense “typically turn[s] on facts not before the court at [the motion to dismiss] stage in the proceedings”); Dillinger, LLC v. Elec. Arts Inc., 795 F.Supp.2d 829, 838 (S.D. Ind. 2011) (“A defendant's ‘non-trademark use' is an element of the fair-use affirmative defense, the lack of which doesn't necessarily preclude establishing the plaintiff's prima facie case.”)

Ancestry points out Indiana precedent allows video games to be literary works. See Dillinger, LLC v. Elec. Arts Inc., 795 F.Supp.2d 829, 836 (S.D. Ind. 2011). This is true, and the case holding that video games may be literary works provided a litany of citations in support of that position and a robust explanation.

” Ind. Code Ann. § 32-36-1-1(1)(c)(1)(A). At least one court has concluded that this reaches video games. See Dillinger, LLC v. Elec. Arts Inc., 795 F.Supp.2d 829, 836 (S.D. Ind. 2011). Here, even if one accepts that yearbooks are literary works, Classmates has not shown that its subscription service is a literary work.

If “the Plaintiff can't establish conversion, it necessarily can't establish theft either.” Dillinger, LLC v. Electronic Arts Inc., 795 F.Supp.2d 829, 839 (S.D.Inc. 2011).

That sentence provides that the HPRA "is intended to apply to all individuals and personalities, living and deceased." The WGS Companies cite to Dillinger, LLC v. Electronic Arts Inc., 795 F. Supp. 2d 829 (S.D. Ind. 2011) to support their argument that this language is ambiguous. In Dillinger

Defendants say these claims should be dismissed because these claims are duplicates of LeSEA's trademark claims and the business names they are using were validly registered with the Indiana secretary of state. In support of this argument, defendants direct me to four district court opinions from the Southern District of Indiana: Dillinger v. Electronic Arts, Inc. , 795 F. Supp.2d 829 (S.D. Ind. 2011) ; Heckler & Koch, Inc. v. German Sport Guns GmbH , 2009 WL 3200587 (S.D. Ind. Sept. 25, 2009) ; Heckler & Koch, Inc. v. Coharie Arms, Inc. , 2010 WL 987747 (S.D. Ind. March 12, 2010) ; Ellington v. Gibson Piano Ventures, Inc. , 2005 WL 1661729 (S.D. Ind. June 24, 2005). The problem for defendants, as they tacitly acknowledge, is that all four of these cases predate the Indiana Supreme Court's decision in Yao v. State , 975 N.E.2d 1273 (Ind. 2012), which all but dictates the outcome in this case.

Because Leapers's alleged Markings are "unique symbols of identification" that, at least in part, make up the physical appearance of their scopes, they may be "encumbered" under the relevant statutes. In support of their argument to the contrary, Defendants cite two decisions from this Court—Dillinger, LLC v. Elec. Arts Inc. , 795 F.Supp.2d 829, 839 (S.D.Ind.2011) and Heckler & Koch v. German Sport Guns GmbH ¸ 2009 WL 3200587 (S.D.Ind. Sept. 25, 2009) —relying specifically on a quote from Heckler & Koch : [N]either the Defendants' copying of the distinct look of the [Plaintiff's] weapon nor the use of the [trademark] itself constitutes obtaining, taking, carrying, driving, leading away, concealing, abandoning, selling, conveying, encumbering, or possessing the Plaintiff's intangible property.

In support of their argument to the contrary, Defendants cite two decisions from this Court—Dillinger, LLC v. Elec. Arts Inc., 795 F. Supp. 2d 829, 839 (S.D. Ind. 2011) and Heckler & Koch v. German Sport Guns GmbH, 2009 WL 3200587 (S.D. Ind. Sept. 25, 2009)—relying specifically on a quote from Heckler & Koch: [N]either the Defendants' copying of the distinct look of the [Plaintiff's] weapon nor the use of the [trademark] itself constitutes obtaining, taking, carrying, driving, leading away, concealing, abandoning, selling, conveying, encumbering, or possessing the Plaintiff's intangible property.

Prior to Brown, several appellate and lower court decisions had similarly concluded that video games are entitled to First Amendment protection. See e.g., E.S.S. Entert. 2000, Inc. v. Rock Star Videos, Inc., 547 F.3d 1095 (9th Cir.2008); Interactive Digital Software Ass'n v. St. Louis County, Mo., 329 F.3d 954, 957 (8th Cir.2003); American Amusement Machine Association v. Kendrick, 244 F.3d 572, 576 (7th Cir.2001); Dillinger, LLC v. Electronic Arts Inc., 795 F.Supp.2d 829, 835–36, 2011 WL 2446296, *5 (S.D.Ind. Jun. 15, 2011). Plaintiff argues, in his supplemental briefing, that Brown is of no help to EA here.