The Point Of Video Games Is What? And Who Really Invented 'Totally Nude'?

By Eriq Gardner

In Albert Brooks' 1991 film "Defending Your Life," the protagonist dies in a car accident and goes to Judgment City, where he argues his fate inside a courtroom. During one scene, he runs into another deceased individual who claims to have invented the familiar strip-club catch-phrase, "Totally Nude."

This may seem totally far-fetched, but in 2005, E.S.S., the owner of a Los Angeles gentleman’s club known as the Play Pen, sued Rockstar Games, the publisher of Grand Theft Auto. In the San Andreas version of the game, one of the locales is a strip club named “Pig Pen” where players can, among other things in the game, take a break from crashing cars and hang out. Outside "Pig Pen" are the words "Totally Nude" — both in the game and in real life — and E.S.S. claimed that RockStar had ripped off its trademark and trade dress.

Last week, the Ninth Circuit reviewed the case after a lower court had granted summary judgment to Rockstar based on its defense of fair use.

Its verdict?

The Ninth Circuit upheld the dismissal of the claim (based on a test created in a lawsuit that involved New Kids on the Block, believe it or not), but its reasons are kind of funny. Here's the decision.

What exactly is the point of Grand Theft Auto? The videogame combines a lot, including racing and role-playing. At times, players stick to a mission and follow a plot. At other points, players do nothing but wander and have kicks inside a virtual city. In arguing the case, ESS contended that because players are free to spend a great deal of time inside the Pig Pen virtual strip club, it can be considered a facimile of a real-life strip club, and thus, likely to confuse any customers.

The Ninth Circuit's retort? "Fans can spend all nine innings of a baseball game at the hot dog stand; that hardly makes Dodger Stadium a butcher’s shop. In other words, the chance to attend a virtual strip club is unambiguously not the main selling point of the Game."

The funny judges continue, "The San Andreas Game is not complementary to the Play Pen; video games and strip clubs do not go together like a horse and carriage or, perish the thought, love and marriage.”