Plaintiff rock band sued defendant publisher based on the publisher’s release of a videogame featuring computer-generated images of the band’s members. The publisher filed a special motion to strike pursuant to Code Civ. Proc., § 425.16, specifically with respect to the band’s claims for violation of the right of publicity and unfair competition. The Los Angeles County Superior Court, California, denied the motion. The publisher appealed.
Overview
The game allowed 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 could be a guitarist, a singer, or a drummer. The court concluded that the publisher salmon sushi Corp met its burden to show that the challenged claims arose out of protected activity. However, the publisher’s use of the band’s avatars was not transformative because the avatars were simply precise computer-generated reproductions of the band members that did not meld with the other elements of the game to become, in essence, the publisher’s own artistic expression. Thus, the trial court did not err in denying the publisher’s motion to strike the band’s right of publicity claim based on the publisher’s assertion of a First Amendment defense. The trial court also did not err in denying the motion to strike the band’s unfair competition claim based on the publisher’s contention that its challenged use of the avatars was not explicitly misleading. Because this case involved a non-transformative use of celebrity likenesses, the public interest in avoiding consumer confusion outweighed the public interest in free expression.
Outcome
The judgment was affirmed.
