Wednesday, February 16, 2011
C.A. Allows Band’s Lawsuit Over Videogame to Proceed
By SHERRI M. OKAMOTO, Staff Writer
This district’s Court of Appeal yesterday allowed a lawsuit by the rock band No Doubt over the use of its members’ likenesses in a videogame by Activision to go forward.
Div. Four rejected Activision’s argument that its use of the No Doubt members’ appearances, movements and sounds were protected by the First Amendment and affirmed Los Angeles Superior Court Judge Kenji Machida’s decision denying a special motion to strike the band’s complaint as a strategic lawsuit against public participation.
Activision had entered into a licensing agreement with the members of No Doubt to include the band’s songs and computer-generated images of its members in its “Band Hero” game. The game is part of Activision’s highly successful “Guitar Hero” franchise, which allows players to simulate performing popular rock songs in various settings, such as venues in Paris and Madrid, a shopping mall, and outer space.
Players can “be” digital representations of a guitarist, a singer, or a drummer, known as “avatars.” The game offers avatars which are fictional characters created and designed by Activision as well as some based on actual musicians.
After No Doubt agreed to have their songs included in the game, the band members, pursuant to the licensing agreement, participated in a full-day motion capture photography session at Activision’s studios for purposes of rendering their avatars.
About two weeks before Band Hero was scheduled to be released, the band alleged that it learned the game contained features which would allow players to use No Doubt’s avatars to perform any of the 60 songs included in the game, not just the two songs the band licensed for use. The game also would allow manipulation of the No Doubt member-based avatars to sing songs in a voice of the opposite gender and perform solo or with other bands.
No Doubt later sued Activision, seeking injunctive relief and damages based on claims the game maker’s exploitation of the band’s name, performances and members exceeded the scope of the licensing agreement.
Activision moved to strike the complaint, contending its use of the No Doubt avatars was ‘protected first Amendment activity involving an artistic work,” since the game shows these characters “surrounded by unique, creative elements, including in fanciful venues … and performing songs that No Doubt avowedly would never perform in real life.”
Machida denied Activision’s motion, finding Activision’s literal reproductions of the images of the No Doubt members did not constitute a “transformative” use sufficient to bring them within the protection of the First Amendment.
Justice Thomas L. Willhite Jr. agreed with Machida’s determination in his decision for the appellate court.
Although the justice reasoned the acts underlying No Doubt’s claims involved speech in connection with an issue of public interest, as required for an anti-SLAPP motion to succeed, because of the band’s “widespread fame,” Willhite said Activision’s game was “pure mimicry” and not Activision’s own artistic expression.
“[N]o matter what else occurs in the game during the depiction of the No Doubt avatars, the avatars perform rock songs, the same activity by which the band achieved and maintains its fame,” and they “perform those songs as literal recreations of the band members,” he explained.
The justice reasoned the fact 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.”
He added that No Doubt did not have to make the “almost impossible showing” that Activision’s use of the No Doubt-based avatars was “explicitly misleading” to consumers in order to state a viable claim for unfair competition, but cautioned the band would have to demonstrate that members of the public are likely to be deceived by Activision’s use of its members’ likenesses to prevail on such a cause of action.
Justice Steven C. Suzukawa joined Willhite in his decision and Presiding Justice Norman L. Epstein concurred in the result only.
Epstein opined the licensing agreement between the parties should have precluded Activision’s First Amendment claim, and that it was unnecessary to reach the “transformative use” issue.
Since the contract required Activision to obtain No Doubt’s approval for use of the band’s depiction in the game, Epstein said Activision therefore could not claim that it had a constitutional right to use of the No Doubt avatars in ways that breached the terms of the agreement.
Susan R. Estrich, Stan Karas and Michael T. Zeller of Quinn Emanuel Urquhart & Sullivan represented Activision while Gil N. Peles and Bert H. Deixler of Proskauer Rose were counsel for the band.
The case is No Doubt v. Activision Publishing, Inc., B223996.
Copyright 2011, Metropolitan News Company