No Doubt wins claim against video game publisher Activision: claim is not barred by the First Amendment and the use in the video game violates band members’ right of publicity
The band No Doubt has secured a significant ruling against video game publisher Activision. The ruling also appears to send a clear message to the video game industry that video games are indeed commercial products, are not entitled to right of publicity exemptions, and are not to be afforded special First Amendment treatment.
Video games would seem to be a prime example of why the right of publicity exists in the first place. Nevermind the long-standing course of conduct whereby video game companies routinely have secured permission and licensed the use of third-party intellectual property in its games; if a video game is not a commercial product, and is exempt from right of publicity liability when a person is included in the game’s content and programming, one would have to wonder why the right of publicity exists at all. This ruling gives some assurance that the video game industry is not going to secure the sweeping shield from right of publicity compliance that it has been seeking.
No Doubt licensed Activision for inclusion in its popular Rock Band video game subject to specific limitations in the license agreement. The use of the band went beyond the contractual allowances, and allowed users to unlock features and manipulate the No Doubt avatars into performing songs that were not approved by the band, among other things.
It would seem like this claim was really just a contract dispute at its core. If the contract precisely defined how the band could be included in the video game, then anything that goes beyond those parameters would seem to exceed, and thus breach, the license agreement.
Activision asserted that No Doubt’s claim was barred by the First Amendment, and that the use was sufficiently transformative (under the Comedy III decision) and therefore not a violation of the band members’ right of publicity. The Court disagreed, and added that the band did not need to show that the use was “explicitly misleading” in order to support its unfair competition claim.
The video game industry would like to believe that its commercial products should be exempt under right of publicity legislation, receiving the same treatment as books or news reporting. This ruling, at least, would seem to indicate that the Courts aren’t buying the video game industry’s view.
Here is a link to the ruling: http://www.courtinfo.ca.gov/opinions/documents/B223996.PDF