NO DOUBT v. ACTIVISION PUBLISHING, INC.
192 Cal.App.4th 1018 (2011)
NO DOUBT, Plaintiff and Respondent,
ACTIVISION PUBLISHING, INC., Defendant and Appellant.
Court of Appeals of California, Second District, Division Four.
February 15, 2011.
The rock band No Doubt brought suit against the video game publisher Activision Publishing, Inc. (Activision), based on Activision's release of the Band Hero video game featuring computer-generated images of the members of No Doubt. No Doubt licensed the likenesses of its members for use in Band Hero, but contends that Activision used them in objectionable ways outside the scope of the parties' licensing agreement. Activision filed a special motion to strike under Code of Civil Procedure section 425.16, contending that No Doubt cannot demonstrate a probability of prevailing on its claims for violation of the right of publicity (Civ. Code, § 3344 and common law) and unfair competition (Bus. & Prof. Code, § 17200) because its use of the No Doubt likenesses is protected by the First Amendment. Activision appeals from the trial court's denial of its motion. Applying the transformative use test first adopted in Comedy III Productions, Inc. v. Gary Saderup, Inc. (2001) 25 Cal.4th 387 [106 Cal.Rptr.2d 126, 21 P.3d 797], we conclude that the creative elements of the Band Hero video game do not transform the images of No Doubt's band members into anything more than literal, fungible reproductions of their likenesses. Therefore, we reject Activision's contention that No Doubt's right of publicity claim is barred by the First Amendment. In addition, we disagree with Activision's contention that No Doubt must demonstrate that Activision used the likenesses of the band members in an "explicitly misleading" way in order to prevail on its unfair competition claim. Accordingly, we affirm the trial court's judgment.FACTUAL AND PROCEDURAL BACKGROUND
Band Hero Dispute
Defendant Activision is a leading international video game distributor and the creator and owner of the interactive Band Hero video game. Band Hero is
a version of Activision's Guitar Hero franchise that has sold over 40 million units.1 The game allows players to simulate performing in a rock band in time with popular songs. By choosing from a number of playable characters, known as "avatars," players can "be" a guitarist, a singer, or a drummer. Some of the available avatars are fictional characters created and designed by Activision while others are digital representations of real-life rock stars. Players can also design their own unique fictional avatars. Represented by the avatars of their choosing, players "perform" in various settings, such as venues in Paris and Madrid, a rock show at a shopping mall, and even outer space.