IP/Entertainment Law Weekly Case Update For Motion Picture Studios And Television Networks - February 23 , 2011

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No Doubt v. Activision Publishing, Inc., California Court of Appeal, Second Appellate District, February 15, 2011

• In rock band’s right of publicity action, court finds videogame publisher’s use of band members’ likenesses to not have been transformative and affirms denial of anti-SLAPP motion.

Members of the rock band No Doubt sued a videogame publisher, alleging that the publisher’s use of their likenesses exceeded the parties’ licensing agreement, and thereby constituted a violation of their right of publicity under California law.

Defendant is the publisher of the videogame Band Hero, in which game players can assume control of avatars who play rock music. No Doubt members had agreed that the publisher could digitally develop avatars based on their likenesses, character traits and performing styles.

In the game, players could use the No Doubt avatars to play songs by both No Doubt and also other musical acts. Players could also manipulate the No Doubt characters by having the band’s lead female singer sound like a man and a male singer sound like a woman. No Doubt sued, claiming that the publisher exceeded the licensing agreement by making a game in which No Doubt members could sing various songs (not just those by No Doubt) and have their voices manipulated.

Defendant filed a special motion to strike under California Code of Civil Procedure Section 425.16 (known as an anti-SLAPP motion), contending that the First Amendment protected its conduct, and that No Doubt could not demonstrate a probability of succeeding on its right of publicity claim. The trial court denied defendant’s motion to strike, whereupon the defendant appealed to the Court of Appeal, which affirmed the trial court’s decision.

Please see full article below for more information and link to full decision.

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