No Doubt v. Activision Publishing, Inc. (2011) 192 Cal.App.4th 1018
No Doubt, a famous band, entered into a licensing agreement with Activision, publisher of the Band Hero video games, to use No Doubt’s likeness with up to three of its songs. Activision allowed players to “unlock” the No Doubt band members to be used with other songs as well. No Doubt sued for violation of publichity rights and unfair competition. Activision filed an anti-slapp motion based on its alleged First Amendment right to use their personas.
Although the court shot down No Doubt’s claim that the licensing agreement precluded any First Amendment claims, the court denied the anti-slapp motion on the publicity rights stating that Activsions use was not “transformative” set forth in Comedy III Productions (25 Cal.4th 387). Activision did not manipulate the characters in any artistic sense.
The court also denied Activision’s arguments against the unfair competition claims. Activision cited to treatement of First Amendment rights and trademark rights under the Lanham Act to claim No Doubt had to prove the challenged use “explicitly misleads the public.” The court then did a lengthy analysis on trademark cases involving free speech to conclude that Activision’s view was more extreme than the actual cases provided. In any event, for Activision’s argument to prevail, the work must first implicate free speech and the court had already concluded Activision’s use fell outside free speech protections.