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When artistic expression takes the form of a literal depiction or imitation of a celebrity for commercial gain, directly trespassing on the right of publicity without adding significant expression beyond that trespass, the state law interest in protecting the fruits of artistic labor outweighs the expressive interests of the imitative artist. A celebrity may enforce the right to monopolize the production of conventional, more or less fungible, images of that celebrity. On the other hand, a work claimed to violate a celebrity's right of publicity is entitled to First Amendment protection where added creative elements significantly transform the celebrity depiction. Another way of stating the inquiry is whether the celebrity likeness is one of the "raw materials" from which an original work is synthesized, or whether the depiction or imitation of the celebrity is the very sum and substance of the work in question. The court asks, in other words, whether a product containing a celebrity's likeness is so transformed that it has become primarily the defendant's own expression rather than the celebrity's likeness. The inquiry boils down to whether the literal and imitative or the creative elements predominate in the work.
The rock band, No Doubt, sued the video game publisher, Activision Publishing, Inc., based on the publisher's release of a video game featuring computer-generated images of the band's members. 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 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 trial court denied the motion. The publisher appealed.
Under the circumstances, should the court grant the publisher’s motion to strike pursuant to Code Civ. Proc., § 425.16?
The Court of Appeal affirmed the judgment. The court concluded that the publisher 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 the case involved a nontransformative use of celebrity likenesses, the public interest in avoiding consumer confusion outweighed the public interest in free expression.