Washington Examiner on ND's Lawsuit

The Washington Examiner is profiling No Doubt’s lawsuit againist video game company Activision as its ”Case of the Week”-the article doesn’t really provide any new information on the case(the latest of which we posted HERE),but it’s an interesting read,I guess:

At the time of this week’s legal tale, Gwen Stefani was a big, giant rock star, and Activision Publishing’s Band Hero videogame series was extremely popular. Combine the two – the theory went – and you would have what one of those MBA-types might call, “synergy.”

Activision and Ms. Stefani thought so—until they ended up in court.

This week’s Case of the Week illustrates the legal principle of the so-called “right of publicity” for us. It also puts us on notice with the following legal poetry: “Make Gwen Stefani a dude, and you’re gonna get sued.”

California Dreamin’

In the 1990s, Gwen Stefani and Activision were both living the Southern California dream. Ms. Stefani and her Orange County band, “No Doubt,” achieved critical and commercial success, including Grammy nominations and huge recording contracts, while hitting the top of the charts with their 1995 single, Don’t Speak.

Meanwhile, the friendly folks at Activision were building a videogame empire in Santa Monica with hit games such as MechWarrior 2: 31st Century Combat and Civilization: Call to Power. They also made some money off a game series based on the adventures of skateboarder Tony Hawk.

Entering the 21st Century, one of Activiion’s biggest games was its Guitar Hero series, which basically allows players to engage in computer-assisted air guitar. Band Hero was a similar, spin-off production.

One of Band Hero’s features allowed players to create avatars based on real life rockers.

Thinking it would be just nifty to have No Doubt avatars in the game – or at least thinking that it would be just nifty to have some of Activision’s cash – No Doubt executed a Professional Services and Character Licensing Agreement with Activision, allowing the gamemaker to create avatars–or computerized characters–based on the band, and use them in Band Hero.

Gwen is not a dude

Much to their horror, the members of No Doubt learned about a special feature of Band Hero shortly before the product’s launch—it was a special feature No Doubt may have worried pubescent punksters might manipulate.

In their Agreement, Activision and No Doubt agreed Activision would license only a limited number of No Doubt songs for use in the game. However, that provision failed to consider another potential use of Band Hero.

When players reached a certain level of the game, Band Hero allowed them to “unlock” their avatars, changing their song selection and personal characteristics.

For instance, Activision licensed only a few No Doubt songs, but if Little Johnny were proficient enough in Band Hero to get his avatar—say perhaps a lasciviously alluring Ms. Stefani—to reach Level Nine of Band Hero, he can “unlock” her and free her from the bondage of her current condition, in every way, including gender.

No Doubt was most displeased to discover that, once your Gwen Stafani avatar were unlocked, not only could Avatar Gwen be singing Janet Jackson, she could also be singing Tito Jackson.

You see, once unlocked, an avatar’s voice could be changed from male to female.

Not surprisingly, Ms. Stefani and her bandmates were not excited about the prospect of having their voices replaced with the manly sounds of Boy George.

Ska vs. Suits

Could Activision really use the twisted avatars without No Doubt’s permission?

No Doubt didn’t think so, and the band sued Activision in California state court. In No Doubt v. Activision Publ’g, Inc., the band sued for injunctive relief and damages, arguing Activision had engaged in the unauthorized exploitation of No Doubt’s name and likeness.

The band sued on several grounds, including Activision’s alleged violation of No Doubt’s so-called right to publicity.

The right to publicity gives an individual control over the commercial use of her name or likeness. About half the states have a statutory right of publicity and others protect the right to publicity as part of their right to privacy laws.

There has been a movement to extend the right of publicity beyond death. Not surprisingly, this movement is led by the heirs of some very famous dead people, including the heirs of Marilyn Monroe.

California is one of those states with a codified right to publicity, contained in section 3344 of the California Civil Code.

However, Activision countered that No Doubt’s right of publicity was barred as a matter of law because Activision’s actions on the avatars constituted constitutionally protected activity under the First Amendment.

A Los Angeles Superior Court judge denied Activision’s motion to strike No Doubt’s complaint, and Activision appealed to California’s Second District Court of Appeal.

Citing Comedy III Prods., Inc. v. Gary Saderup, Inc., the appellate court applied the “transformative use test,” a method to determine whether a use of a likeness was transformed from something more than a mere impersonation.

The appellate court sided with No Doubt and the trial court. The court ruled that a transgendered avatar did not qualify as a transformative use. Thus, the appellate court held, the First Amendment did not excuse Activision’s alleged violation of its right to publicity.

“Nothing in the creative elements of the Band Hero elevates the depictions of No Doubt to something more than ‘conventional, more or less fungible, images’ of its members that No Doubt should have the right to control and exploit. Thus, the trial court did not err in denying Activision’s motion to strike the right of publicity claim based on Activision’s assertion of a First Amendment defense,” Judge Thomas Willhite Jr., wrote for the court,

The court compared and contrasted Ms. Stefani’s avatar with the image in another case involving a Sega videogame and the former lead singer of Dee-Light, Kirby v. Sega of Am., in holding Avatar Stefani was not a transformative use. The First Amendment may be powerful, but—at least in this Case of the Week—it provides no constitutional protection for a Gwen Stefani avatar in a Boy George voice singing, Do You Really Want to Hurt Me?

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