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Lewis v. Activision Blizzard, USDC, N.D. Cal, October 17, 2013
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District court grants summary judgment against former employee “game master” of defendant videogame company, finding that sound recordings of employee later incorporated into video game were “works made for hire.”
Activision Blizzard, Inc., and Blizzard Entertainment, Inc. (together, Blizzard), develop, market, and distribute computer games, including the very popular World of Warcraft. Plaintiff, a former Blizzard employee, worked as a “game master” for World of Warcraft, a position that involved providing customer service, managing the online gamer community, and, according to her formal job description, “assisting with the creation of content during the ever ongoing development of the game.” While serving in that role, plaintiff was invited to participate in “open auditions” for voiceover work related to the game. Plaintiff auditioned and was invited to record a voice for a character called the “baby murloc.”
Plaintiff participated in two recording sessions in Blizzard’s offices (on her days off) and was compensated for her participation in both recording sessions at her usual hourly rate. She never sought additional compensation for her work on either recording. Although she was not explicitly told that the voice work would be incorporated into a new version of the game itself, she understood that it would be used in connection with the game and its marketing. Later, she discovered that the recordings were used to create a new baby murloc character. After being terminated by Blizzard, plaintiff brought suit against Blizzard for copyright infringement, along with state law claims that were later dismissed.
Blizzard moved for summary judgment, contending that plaintiff did not own a copyright in the baby murloc recordings because the recordings constituted a “work made for hire” under the Copyright Act. In the alternative, Blizzard argued that it was a joint author of the recordings and could not be held liable for copyright infringement.
Analyzing whether the recordings were a “work made for hire,” the court noted that the Copyright Act defines that term as “work prepared by an employee within the scope of his or her employment.” Looking to general common law understandings of “scope of employment,” the court found that the undisputed facts demonstrated that plaintiff was an employee of Blizzard and that her contributions to the baby murloc recordings fell squarely within the scope of her employment. Although plaintiff’s role primarily entailed customer service, her job description specifically covered contributions to game content, and plaintiff admitted that game masters, in fact, made these contributions from time to time. Plaintiff also conceded that her supervisor praised her work on the recordings during a performance review, suggesting that the recordings were viewed as part of her overall job duties. Moreover, the recording sessions were conducted at Blizzard’s offices, using Blizzard’s equipment, and under the supervision of Blizzard’s sound engineer. Even if the particular voice were plaintiff’s own “idea,” as she contended, the court noted that such mere ideas are not copyrightable. Finally, the court found clear evidence that plaintiff was motivated by a desire to serve Blizzard’s interests when she made the recordings. Having found that plaintiff’s contributions to the recordings were made in the scope of her employment, the court concluded that they constituted a “work made for hire” under the Copyright Act and granted summary judgment in Blizzard’s favor.
McKinney v. Morris, California Court of Appeal, Second District, October 15, 2013
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California appellate court strikes claims for defamation, misappropriation, and invasion of privacy defamation brought by a 1970s tabloid celebrity against the director and producers of the documentary Tabloid under California’s Anti-SLAPP statute.
Plaintiff Joyce McKinney is a former beauty pageant contestant who, in the 1970s, was the subject of a tabloid media frenzy in England concerning her alleged kidnapping and rape of a Mormon missionary, Kirk Anderson, the so-called Manacled Mormon. Plaintiff, who fled England to avoid prosecution, claimed that Anderson was her fiancé, that he had consented to sex, and that she was attempting to rescue him from the Mormon Church. Defendant Errol Morris is an Academy Award-winning director who, along with the remaining defendants, produced a documentary film titled Tabloid, which focused on plaintiff’s experience with the tabloid press. Much of the film revolved around Morris’ five-to-six-hour interview of plaintiff. Plaintiff initially signed a release in 2009, agreeing to the use of her interview and story in a television documentary on how the tabloid press destroys privacy, and she later signed a separate release in 2010, when defendants decided to produce Tabloid as a full-length documentary instead.
Following the release of Tabloid in 2011, plaintiff sued Morris and other producers of the documentary for, among other things, defamation, invasion of privacy (based on intrusion on seclusion and false light), fraud, breach of contract, common law misappropriation, commercial misappropriation of likeness, and intentional infliction of emotional distress. Defendants moved to strike certain of the claims under California’s Anti-SLAPP statute, Code of Civil Procedure § 425.16, on the grounds that the claims arose from defendants’ exercise of free speech and that plaintiff had signed written releases regarding the use of her interview, image, and story in Tabloid, for which plaintiff was paid. The trial court granted defendants’ motion to strike.
On appeal, the court affirmed that plaintiff’s claims arose from protected free speech activity, which included writing, filming, producing, distributing, publicizing, and promoting a film concerning a public issue or matter of public interest. Although the film concerned elements of plaintiff’s private life and role in a 30-year-old scandal that was not widely publicized in the United States, the film intertwined plaintiff’s story with the broader topic of tabloid journalism.
Second, plaintiff failed to establish a probability of prevailing on any cause of action because she failed to defeat defendants’ evidence that plaintiff was a limited-purpose public figure or to demonstrate that defendants acted with “actual malice.” Examining the totality of the circumstances, the court found that plaintiff was a limited-purpose public figure because she had agreed to be interviewed for a documentary, which she knew would be shown to the public. Plaintiff’s evidence of defendants’ showing hostility in dealing with plaintiff, making statements advertising the film, and failing to include certain materials in the film was insufficient to establish that any defendant “had a high degree of awareness of . . . probable falsity . . . or subjectively entertained serious doubts as to the truth” of any materials in the film, and therefore no actual malice was shown.
Finally, defendants established that any misappropriation of plaintiff’s likeness and name was subject to a public interest/newsworthiness defense. Plaintiff’s history as a tabloid celebrity in the 1970s is a matter of widespread public interest, for which plaintiff has received numerous requests from media outlets to tell her story. Plaintiff was also contemplating writing a book regarding her experiences in the public eye. Because plaintiff failed to overcome defendants’ evidence in support of their defenses, the court granted defendants’ motion to strike under California’s Anti-SLAPP statute.
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