Has The Law Eased Up On Third Party IP Use? Not exactly, but there has been a shift in how much of a celebrity’s likeness, e.g. a character that looks like a celebrity, can be used in a game without violating the law.


Two federal courts are now granting video game developers use of celebrity likenesses within their games without a license. That is indeed a victory for the video game industry, in particular regarding recent legal battles over misappropriation of celebrity likeness in video games, such as Hart v. Electronic Arts, Inc and No Doubt v. Activision Publishing, Inc. Keep in mind though, the law hasn’t “changed,” these decisions only provide valuable guidance to assess risk and clearance strategies when considering using a celebrity’s likeness in your game and will give perspective to the ongoing dispute between Take Two Interactive and WWE in Illinois over the use of the tattoo on a wrestler.

Here’s what happened

On March 26, 2020, a federal district court in New York held that NBA 2K did not infringe copyright by placing copyright protected tattoos on players’ avatars in NBA 2K. A few days later, a federal district court in Pennsylvania held that Fortnite Battle Royal had not misappropriated the likeness of a professional saxophonist by replicating his signature dance move (so he claims) as an emote. Although the decisions are very different, in two different jurisdictions, concerning two different games, the gist is the same: creative expression in video games is on par with such of other artistic mediums – meaning, they deserve the same First Amendment protection just like any other.

In Solid Oak Sketches, LLC v. 2K Games Inc., the court decided that this specific featuring of tattoo designs on various players without permission did not amount to copyright infringement for three separate reasons: The use was limited (so called de minimis use) because only three out of the 400 players in the game had the tattoo, which in addition, was too small, indistinct and obstructed by game elements to be identified by the users. The court backed this up with a very rare move, the use was too limited because the tattoos comprised only 0.000286% to 0.000431% of the total game data for NBA2K. Fair use was held “because there was no market for licensing of tattoos for use in video games, nor was one likely to develop.” While de minimis and fair use rest on the game’s particular use of the images, the court also gave way to the argument, that the players, though not the rights holders, could grant Take Two Interactive an implied license for use.

In Pellegrino v. Epic Games, the court decided that allowing the game’s avatars to perform the dance transformed the protected dance to such an extent that the author’s likeness was not affected anymore – hence no infringement. In simple, the avatars didn’t look like Pellegrino and performed different functions (warrior vs. musician) so there “can’t be any likeness” of Pellegrino.

What does that mean and what’s so great about this?

For the past two decades, we’ve seen a series of cases denying First Amendment protection (which was essentially the defendants argument) to developers of video games who use avatars of real athletes and celebrities, while granting it to movies, television, and other forms of expression. This turn is remarkable as it is another step to acknowledging the importance of video games.

These decisions, however, were heavily based on these two specific fact scenarios and how the games depicted the tattoo’s and the saxophonist in particular. They aren’t saying: use tattoos, that’s fine, or take a popular move from a celebrity, that’s also fine. What these decisions do say, however, is that video games can and should be afforded the same constitutional protections as visual art, film, music and other forms of expression. Nevertheless, the analyses, in particular of the amount used of the protected content, will be an interesting double-edged sword for such disputes, and will give guidance when considering using and how to use such protected content.

Author: Jennifer Kleinman and Daniel Koburger

First Publication: 4/17/2022

When a US company receives an Article 15 GDPR access request from an EU individual to disclose information the company has processed about them, full compliance could expose its most valuable trade secrets.


This conflict between transparency and secrecy increasingly exposes unprepared US businesses to a dilemma: comply with the GDPR to avoid penalties or do not comply to protect your trade secrets.

Article 15 access requests increased by 222% from 2021 to 2024. Providing no or insufficient information can expose a company to GDPR fines of up to €20 million or 4% of its global annual revenue. Since 2018, GDPR enforcement has resulted in more than €7.1 billion in fines. From 2021 to 2024, U.S. companies specifically faced an average of €1.15 billion in GDPR fines annually. For example, Clearview AI, a U.S. facial recognition company, was fined €30.5 million for failing to respond to two access requests from EU individuals, among other GDPR violations. Likewise, Spotify was fined €5 million in 2023 for failing to provide sufficiently clear information about its personal data processing.

This article provides U.S. tech companies with a strategic and practical framework for navigating GDPR disclosure obligations while protecting their valuable trade secrets.

EU Transparency versus US Secrecy

While the GDPR’s right of access allows individuals to understand how companies process their personal data, trade secret law protects a company’s proprietary information by keeping it secret. However, because a trade secret is only protected as long as it is actually secret, once a company hands over data in an access response, that information may no longer be protected by law; also allowing competitors to freely use it (if they actually obtain it—for example via discovery in litigation).

Given that the GDPR applies to US businesses and the right of access covers not only the personal data but also how that data is processed, distinguishing personal information from proprietary and secret information can be difficult and often impossible, particularly when attempted after the fact rather than as a preventive measure.

For example, an AI hiring company may receive an Article 15 access request requiring it to explain how an applicant’s data was evaluated. However, providing too much detail could reveal trade secrets, such as how its hiring algorithm ranks candidates or which factors receive the most weight. A streaming platform may receive a request asking how a user’s personal data is used to generate personalized recommendations. Responding to the request could risk disclosing confidential recommendation algorithms or methods for predicting user preferences. Likewise, an e-commerce company may receive a request asking why one customer was shown a higher price than another. Explaining the decision could reveal proprietary pricing models, customer segmentation strategies, or other confidential methods used to determine individualized prices.

In SCHUFA (C-634/21, December 2023), the CJEU held that data subjects requesting access to credit-scoring information are entitled to a meaningful explanation of the logic behind automated decision-making. While the Court recognized that trade secrets must be protected, it cannot justify a blanket refusal to disclose relevant information. Similarly, in Österreichische Post (C-154/21, 2023), the CJEU clarified that data subjects have the right to know the specific recipients of their personal data, not merely categories of recipients.

The critical point is that both regimes are legitimate and enforceable, and neither overrides the other in the GDPR context.

What Data and What Processing?

Upon receiving an Article 15 access request, a US company must confirm whether it processes the individual's personal data and must provide access to that data, along with key information about the processing. This includes the purposes of the processing, the categories of personal data involved, the recipients, the applicable retention period (or the criteria used to determine it), the individual's rights to rectification, erasure, restriction, and objection, the right to lodge a complaint with a supervisory authority, the source of the data (where applicable), and the existence of automated decision-making, including profiling.

Article 12 GDPR requires a response without undue delay and within one month of receipt, which may be extended by up to two further months for complex requests. The information must be provided in a concise, transparent, intelligible, and easily accessible form using clear and plain language. The first copy of the personal data must be provided free of charge, and companies must facilitate the exercise of data subject rights and cannot refuse to act unless the controller demonstrates that it cannot identify the data subject.

Trade secrets are defined as information that is secret, has commercial value because of its secrecy, and is subject to reasonable steps to maintain its secrecy. In the tech context, trade secrets commonly include proprietary algorithms, credit and risk-scoring models, recommendation engines, ad-targeting logic, data enrichment pipelines, internal ranking systems, and training data methodologies. For example, in Dun & Bradstreet Austria (C-203/22), a credit-scoring company refused to disclose the logic behind its proprietary scoring model, arguing that doing so would reveal trade secrets. The CJEU clarified that companies must provide meaningful explanations for automated decision-making while balancing the protection of trade secrets.

Practical Strategies for Balancing GDPR and Trade Secret Protection

Resolving the tension between GDPR transparency obligations and trade secret protection requires a careful balancing approach. The goal is to provide data subjects with meaningful information about their data and how it is processed, while limiting disclosure to what is necessary. This requires a proactive system and clear internal processes. The most effective strategy is a layered disclosure model, which means:

Establishing internal systems that provide meaningful but calibrated explanations of algorithmic logic without revealing source code, training data, or other core intellectual property.

Separating personal data from proprietary algorithmic information during system design whenever possible, making future access requests easier to handle.

Using existing industry practices as guidance. Major U.S. tech companies provide useful examples. Companies like Google, Apple, and Meta have developed well-established access request infrastructures, such as Meta’s “Download Your Information.”

Maintaining robust non-disclosure agreements and internal policies that reinforce trade-secret classification and limit exposure risks.

Keeping clear records of what qualifies as a trade secret, why it qualifies, and what protective measures are in place. This documentation is critical for defending refusals before data protection authorities or courts.

Building an internal process to assess each access request for proportionality and balance the data subject’s rights against the company’s legitimate interests.

Furthermore, under the GDPR, a company does not have to comply with requests that are manifestly unfounded or excessive, especially if they are repetitive. However, the burden of proving this rests on the business, and European courts require clear, objective evidence of abusive intent rather than simply a high volume of requests.

Conclusion

GDPR transparency obligations are real and enforceable, but so is the right to protect trade secrets. Neither is absolute. The CJEU has made clear that blanket refusals are insufficient, but calibrated, well-documented responses can satisfy both regimes.

The key message is proactive preparation. If your company processes EU personal data and relies on proprietary algorithms or data-driven systems, now is the time to audit your access-request protocols. Companies that prepare their access-request procedures now will be far better positioned to comply with the GDPR while preserving the trade secrets that underpin their competitive advantage.

If a French authority wants to know who really stands behind a company registered in the United States, can it find out? The answer sits where three layers of law meet: federal, state, international and they do not always line up.

The federal layer : FinCEN

The United States created a tool designed for precisely this purpose. The Corporate Transparency Act passed in 2021 as part of the Anti-Money Laundering Act of 2020 it created a register of beneficial owners held by FinCEN, the Financial Crimes Enforcement Network, to make it harder to hide behind anonymous companies; at launch it was expected to capture tens of millions of entities.1 Then it ran into trouble.

Small businesses challenged it across the country as exceeding Congress’s powers and as an unreasonable search, winning a string of injunctions before the appellate courts ultimately upheld the statute.2 In the meantime, to spare millions of low-risk domestic businesses the compliance burden and to refocus on higher-risk foreign entities, the Treasury narrowed the rule in March 2025: companies formed in the United States are now exempt, and only entities formed abroad and registered to do business in the country still report.3

This was a deliberate choice, not a legal requirement. Treasury Secretary Scott Bessent presented it as part of an effort to ease the regulatory burden on American small businesses4. What followed made this even clearer. In December 2025, a federal appeals court “the Eleventh Circuit” ruled that the CTA was constitutional after all, overturning the lower court that had struck it down5. Even so, the narrower rule stayed in force. The result is a register that was built to reveal who owns American companies, but that now covers almost none of them not because reporting became optional, but because the government deliberately narrowed who has to report. A system once expected to cover tens of millions of companies now applies to only about 12,000 foreign ones.

The New York layer

New York had moved in the same direction, for reasons close to home. Anonymous LLCs had long been used to buy New York real estate with money whose origin was hidden, and to shield landlords who mistreat tenants, contractors who commit wage theft and owners who evade tax so the State passed its own LLC Transparency Act to unmask the real people behind such companies and give regulators and law enforcement a way to hold them accountable.6 The law took effect on 1 January 2026, with its own database of owners. But New York had tied its definitions to the federal statute so when Washington narrowed the federal rule, New York’s narrowed with it, and the Governor vetoed the corrective bill in December 2025 to avoid burdening New York businesses beyond the federal baseline.7 The result is striking: the New York law now reaches only non-US LLCs registered in the State. A French company holding a New York LLC may be among the few entities that must actually file, by 31 December 2026, while American LLCs need not.

The international layer : treaties

This is where the real question emerges. Under the US Constitution, only the federal government concludes treaties; a State cannot.8 France therefore cannot simply ask New York for the information its requests travel through federal channels: the France–US tax treaty, the FATCA agreement, mutual legal assistance.9 New York’s confidential, state-run register is not wired into those treaty routes. With the federal register emptied of domestic companies and the State register limited to foreign LLCs, a foreign government searching for the person behind a purely American company faces a genuinely open question. Two legal systems chase the same goal : knowing who owns what, and where the money sits and arrive in very different places.

For a firm whose clients live on both sides of that line, the gap is exactly where counsel earns its place: identifying what foreign clients must file in New York, monitoring federal rules that are still in motion, and keeping a company’s ownership picture clean before anyone has to ask for it.

The same logic governments trading information drives an obligation that touches almost every cross-border client: declaring bank accounts held abroad. France and the United States both demand it, both feed the same machinery of automatic exchange, and both enforce it. What differs is the cost of getting it wrong.

DECLARING ACCOUNTS HELD ABROAD

FRANCE

UNITED STATES

Form 3916

Filed with the annual income-tax return; one form per foreign account.

Civil (tax) penalty for non-declaration: €1,500 per account, each year up to €10,000 for a non-cooperative state.10

The FBAR : FinCEN Form 114

Required for foreign accounts over $10,000 in aggregate; filed with FinCEN.

US civil penalties for non-compliance: up to $16,536 per report (non-willful); for a willful failure, the greater of $165,353 or half the account balance. Criminal penalties may also apply.11

Same architecture but very different stakes.

What held me was not the technical detail but the shape of the thing: a single objective, pursued from two legal traditions, landing far apart. Sitting between them turning one system into the language of the other is the daily work of a cross-border practice.

By Sarah Mansouri · Legal Intern, KBL Roche · New York, June 2026

This article reflects the personal perspective of the author and offers general information on developments in cross-border law as of June 2026. It is not legal advice.

notes and references:

1 Corporate Transparency Act, 31 U.S.C. § 5336 (2021). FinCEN estimated about 32.6 million entities would have to report (fincen.gov). 2 Court challenges to the CTA, e.g. Nat’l Small Bus. United v. Yellen (N.D. Ala. 2024) and Texas Top Cop Shop (E.D. Tex. 2024). The federal appeals court (11th Cir.) upheld the Act on 16 Dec. 2025.
3 FinCEN interim final rule limiting reporting to foreign companies, « Beneficial Ownership Information Reporting Requirement Revision and Deadline Extension », 90 Fed. Reg. 13688 (26 mars 2025)
4 Treasury Department press release, "Treasury Department Announces Suspension of Enforcement of Corporate Transparency Act Against U.S. Citizens and Domestic Reporting Companies" (2 mars 2025)
5 The Eleventh Circuit decision — Nat'l Small Bus. United v. U.S. Dep't of the Treasury, No. 24-10736 (11th Cir. Dec. 16, 2025)
6 N.Y. bill S.995-B, sponsor’s justification (nysenate.gov); Gov. Hochul, statement on signing the LLC Transparency Act (22 Dec. 2023).
7 N.Y. Limited Liability Company Law § 1106. The corrective bill S.8432 was vetoed on 19 Dec. 2025.
8 U.S. Constitution, art. II, § 2 (treaty power is federal) and art. I, § 10 (States may not make treaties).
9 France–U.S. tax treaty of 1994 (information-exchange article) and France–U.S. FATCA agreement of 2013.
10 Code général des impôts, art. 1649 A (duty to declare) and art. 1736, IV (the €1,500 / €10,000 penalty).
11 31 U.S.C. § 5314 (FBAR obligation), § 5321 (civil penalties: up to $16,536, or for willful failures the greater of $165,353 or 50% of the balance) and § 5322 (criminal penalties).

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