Doubt v. Activision Publishing, Inc.
192 Cal. App. 4th 1018
Cal. Ct. App.2011Background
- No Doubt sues Activision over Band Hero using likenesses of No Doubt members.
- Band Hero features computer-generated avatars of real musicians, including No Doubt, with motion-capture data licensed by No Doubt.
- The parties’ Agreement granted Activision a non-exclusive, worldwide license to use the Licensed Property in Band Hero subject to No Doubt’s prior written approval for character likeness and related uses.
- Approval Rights outline a 10-business-day review period; previously approved assets may be reused.
- Activision’s release included an “unlocking” feature allowing No Doubt avatars to perform songs beyond those licensed; No Doubt objected to these uses and Activision refused to remove the feature.
- Activision removed the case to federal court, later remanded; trial court denied Activision’s anti-SLAPP motion; this appeal follows with the majority affirming the denial and the license protections being weighed against First Amendment rights.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the claims arise from protected activity under §425.16 | No Doubt—claims arise from use of likeness in a public game. | Activision—First Amendment protects transformative game use. | Yes, protected activity shown. |
| Whether Band Hero use is transformative under Comedy III | No Doubt’s likenesses are not transformed beyond literal depictions. | Band Hero’s context transforms likeness through venue and play. | Not transformative as used here. |
| Whether right of publicity claims fail for lack of consent under a license | Agreement does not authorize all uses; consent insufficient. | License covers Band Hero uses subject to approval. | Consent under license; claims survive if out-of-scope uses. |
| Whether §17200 unfair competition requires explicit misleading conduct | No Doubt need not prove explicit deception under Rogers balancing. | Rogers standard requires explicit mislead for Lanham-type claims. | Rogers not required here; No Doubt may prove deception without explicit misleading. |
| Whether Rogers/Essence standards apply to §17200 claimed deception | Rogers test should inform §17200 analysis. | Rogers not controlling for §17200; Comedy III governs transformative use. | Rogers balancing applicable; not limited to explicit misrepresentation. |
Key Cases Cited
- Comedy III Productions, Inc. v. Gary Saderup, Inc., 25 Cal.4th 387 (Cal. 2001) (transformative-use balance between First Amendment and publicity right; depends on added artistic elements)
- Kirby v. Sega of America, Inc., 144 Cal.App.4th 47 (Cal. Ct. App. 2006) (video game context; transformative use can shield likenesses)
- Winter v. DC Comics, 30 Cal.4th 881 (Cal. 2003) (transformative use in comic depictions; not purely literal likenesses)
- Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989) (Lanham Act/First Amendment balance for titles of artistic works; explicit mislead not always required)
- Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894 (9th Cir. 2002) (adopts Rogers test for artistic works in Lanham Act context)
- ETW v. Jireh Publishing, Inc., 332 F.3d 915 (6th Cir. 2003) (applies Rogers-like analysis to artistic expression)
- Navellier v. Sletten, 29 Cal.4th 82 (Cal. 2002) (two-step anti-SLAPP analysis; protected activity threshold)
- Rusheen v. Cohen, 37 Cal.4th 104 (Cal. 2006) (anti-SLAPP procedural framework; de novo review)
- Kirby v. Sega of America, Inc., 144 Cal.App.4th 47 (Cal. Ct. App. 2006) (discusses transformative use in video games)