A California appellate court has allowed the band No Doubt to pursue its litigation with Activision, a case that’s key because it underscores how game publishers and developers must use care in their licensing agreements. A crucial point emerging from this matter is that publishers and developers cannot use peoples’ likenesses as they please.
This case is strikingly similar to the recent ongoing litigation by student-athletes against another video game publisher, EA. The student-athletes have sued EA over the way it employs likenesses of football players. EA, among many legal avenues, is pursuing a First Amendment defense.
In the No Doubt case, Activision asserts that it can use the rockers’ likenesses freely as avatars in the game “Band Hero,” performing songs the group never did; the musicians disagree and say that this violates their licensing agreement. Activision noted that it was common knowledge that “Band Hero” enthusiasts could “unlock” the avatars in the game to make them sing songs that No Doubt never had and the company raised a First Amendment defense.
At the trial court level, that judge rejected the First Amendment argument, finding no “transformative use” in the avatars. The Second District California Court of Appeals concurred, allowing the case to go forward.
Link to the opinion.