In an opinion provided below, a California state appeals court has ruled in favor of the band No Doubt in their lawsuit against Activision over the videogame Band Hero.
No Doubt entered into a license agreement with Activision under which the band would appear in the videogame. The license required that Activision obtain prior approval for any use of the band’s likeness. The band spent in a full-day motion capture photography session at Activision’s studios so that the band members’ Band Hero avatars would accurately reflect their appearances, movements, and sounds. No Doubt came to learn, however, that their avatars could be “unlocked” at various levels of the videogame, enabling players to make Gwen Stefani sing with a man’s voice and make the band sing other artist’s songs. No Doubt protested to Activision that these features were beyond the scope of their permission, but Activision released the videogame anyway.
No Doubt sued in California state court. Activision argued that No Doubt’s right of publicity claim was barred–pursuant to California’s anti-SLAPP statute–because Activision’s use of No Doubt’s likeness was protected by the First Amendment. The district court ruled in favor of No Doubt and Activision appealed.
In affirming the district court’s decision, the appeals court applied the rule in Comedy III Productions, Inc. v. Gary Saderup, Inc. (2001) 25 Cal.4th 387, 406, regarding whether the use of a celebrity’s likeness is sufficiently transformative to implicate First Amendment protections. Quoting Comedy III, the court stated “Another way of stating the inquiry is whether the celebrity likeness is one of the ‘raw materials’ from which an original work is synthesized, or whether the depiction or imitation of the celebrity is the very sum and substance of the work in question. We ask, in other words, whether a product containing a celebrity’s likeness is so transformed that it has become primarily the defendant‟s own expression rather than the celebrity‟s likeness.”
In this case, the court found that No Doubt’s avatars were exact replicas of the band members and were the central focus of the videogame. “That the avatars can be manipulated to perform at fanciful venues including outer space or to sing songs the real band would object to singing, or that the avatars appear in the context of a videogame that contains many other creative elements, does not transform the avatars into anything other than exact depictions of No Doubt’s members doing exactly what they do as celebrities.”
The opinion is below:
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