The rockers and the gamers have settled their copyright conflict. Now what about the jocks? No Doubt, led by superstar Gwen Stefani, and the noted video game publisher Activision recently resolved their dispute over use of the performers’ likenesses in a video game. Terms were not disclosed, THR Esq. reports. In 2011, the alt-rock stars sought judicial action to enjoin what it termed unauthorized use of the likeness of No Doubt members in the video game “Band Hero,” a derivative product of Activision’s hit “Guitar Hero.” In this franchise of products, gamers pretend to perform smash tunes on stage. A California appellate court denied a motion to strike in an opinion that provides a tutorial of sorts of game-related law. (Click here to read the ruling).
No Doubt asserted a claim for violation of the right of publicity under Civil Code section 3344, as well as under common law. Section 3344 provides in pertinent part: “Any person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person’s prior consent . . . shall be liable for any damages sustained by the person or persons injured as a result thereof.” The right to publicity was implicated here when the video game publisher used a celebrity likeness. Where the publisher fails to obtain approval in the form of a license or exceeds the scope of a license, expect a summons and complaint. Activision had, in fact, obtained a license, but No Doubt successfully showed there was probable validity to its claims — the video game publisher’s use of that likeness exceeded the scope of the agreement. Click here to learn more.
Activision unsuccessfully argued its use of band members’ likenesses was transformative, an argument predicated upon a First Amendment free-speech defense. The court said it mattered not whether the celebrity likeness was a literal depiction or merely an imitation and this issue would not determine liability stemming from a publicity claim. Instead, the appellate ruling said that the feature that allowed gamers to make characters with No Doubt likenesses perform rock hits by other groups was not transformative. The court denied the video game publisher’s First Amendment-related SLAPP motion to strike.
Meantime, it’s game on in court for Activision versus NCAA athletes, with judges finding in conflicting ways regarding the video gamer’s use of players’ likenesses and whether these are transformative or not.