(Los Angeles County Super. Ct. No. BC425268) APPEAL from a judgment of the Superior Court of Los Angeles County, Kenji Machida, Judge. Affirmed.
The opinion of the court was delivered by: Willhite, J.
CERTIFIED FOR PUBLICATION
The rock band No Doubt brought suit against the videogame publisher Activision Publishing, Inc. (Activision) based on Activision's release of the Band Hero videogame featuring computer-generated images of the members of No Doubt. No Doubt licensed the likenesses of its members for use in Band Hero, but contends that Activision used them in objectionable ways outside the scope of the parties' licensing agreement. Activision filed a special motion to strike under Code of Civil Procedure section 425.16, contending that No Doubt cannot demonstrate a probability of prevailing on its claims for violation of the right of publicity (Civ. Code, § 3344 and common law) and unfair competition (Bus. & Prof. Code, § 17200) because its use of the No Doubt likenesses is protected by the First Amendment. Activision appeals from the trial court's denial of its motion. Applying the transformative use test first adopted in Comedy III Productions, Inc. v. Gary Saderup, Inc. (2001) 25 Cal.4th 387, we conclude that the creative elements of the Band Hero videogame do not transform the images of No Doubt's band members into anything more than literal, fungible reproductions of their likenesses. Therefore, we reject Activision's contention that No Doubt's right of publicity claim is barred by the First Amendment. In addition, we disagree with Activision's contention that No Doubt must demonstrate that Activision used the likenesses of the band members in an "explicitly misleading" way in order to prevail on its unfair competition claim. Accordingly, we affirm the trial court's judgment.
factual and procedural background
Defendant Activision is a leading international videogame distributor and the creator and owner of the interactive Band Hero videogame. Band Hero is a version of Activision's Guitar Hero franchise that has sold over 40 million units.*fn1 The game allows 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 can "be" a guitarist, a singer, or a drummer. Some of the available avatars are fictional characters created and designed by Activision while others are digital representations of real-life rock stars. Players can also design their own unique fictional avatars. Represented by the avatars of their choosing, players "perform" in various settings, such as venues in Paris and Madrid, a rock show at a shopping mall, and even outer space.
In addition to allowing players to perform over 60 popular songs, Band Hero permits players to create their own music and then play their compositions using an avatar. As with all the Guitar Hero videogames, as players advance in the Band Hero game, they can "unlock" characters and use them to play songs of the players' choosing, including songs the players have composed as well as songs made famous by other artists.
Plaintiff No Doubt is an internationally-recognized rock band featuring Gwen Stefani as its lead singer. No Doubt entered into a Professional Services and Character Licensing Agreement (Agreement) with Activision permitting Activision to include No Doubt as one of the rock bands featured in Band Hero.
The pertinent language of the Agreement is as follows: "This Agreement sets out the terms upon which Artist [No Doubt] has agreed to grant to Activision certain rights to utilize Artist's name(s), likeness(es), logo(s), and associated trademark(s) and other related intellectual property rights (the 'Licensed Property') and to provide Activision certain production and marketing services in connection with Activision's 'Band Hero' video game (the 'Game')." The Agreement specifically provides that "Artists grant to Activision the non-exclusive, worldwide right and license to use the Licensed Property (including Artist's likeness as provided by or approved by Artist) solely in the one (1) Game for all gaming platforms and formats, on the packaging for the Game, and in advertising, marketing, promotional and PR materials for the Game." In a section entitled "Approval Rights," the Agreement states that "Artist's likeness as implemented in the Game (the 'Character Likeness'), any use of Artist's name and/or likeness other than in a 'billing block' fashion on the back of the packaging for the Game, and the b-roll and photography or other representation of the Services or of Artist, shall be subject to Artist's prior written approval. [¶] Activision shall submit each of the above (i.e., the Character Likeness, name uses, and b-roll and photography or other representation) to Artist for review and Artist shall have ten (10) business days to either approve or disapprove. . . . [¶] Activision shall not be required to submit for approval uses of previously approved assets, provided such uses fall within the rights granted herein (e.g., using a previously approved Character Likeness depiction in multiple advertising materials)."
As part of the Agreement, Activision agreed to license no more than three No Doubt songs for use in "Band Hero," subject to No Doubt's approval over the song choice. (Ultimately, the game included two No Doubt songs.) No Doubt agreed to participate in one day of game production services "for the purposes of photographing and scanning Artist's likeness, and capturing Artist's motion-capture data."
Pursuant to the Agreement, the members of No Doubt participated in a full-day motion capture photography session at Activision's studios so that the band members' Band Hero avatars would accurately reflect their appearances, movements, and sounds. No Doubt then closely reviewed the motion capture photography and the details related to the appearance and features of their avatars to ensure the representations would meet their approval. The end results are avatars that closely match the appearance of each of the No Doubt band members.
Approximately two weeks prior to the release of Band Hero, No Doubt became aware of the "unlocking" feature of the game that would permit players to use No Doubt's avatars to perform any of the songs included in the game, including songs that No Doubt maintains it never would have performed. Two of No Doubt's members could be unlocked at the seventh level of the game, and the remaining members could be unlocked at level nine. The band also learned that female lead singer Gwen Stefani's avatar could be made to sing in a male voice, and the male band members' avatars could be manipulated to sing songs in female voices. The individual band member avatars could be made to perform solo, without their band members, as well as with members of other groups. No Doubt contends that in the numerous communications with No Doubt, Activision never communicated its intention to permit such manipulations of the No Doubt avatars. Rather, No Doubt insists, Activision represented that No Doubt's likenesses within Band Hero would be used only in conjunction with the selected No Doubt songs.
When No Doubt complained about the additional exploitation of their likenesses, Activision admitted that it hired actors to impersonate No Doubt in order to create the representations of the band members' performances of the additional musical works other than the No Doubt songs licensed for the game. No Doubt demanded that Activision remove the "unlocking" feature for No Doubt's avatars, but Activision refused. Activision contends that No Doubt's request came only after the programming had been finalized and the manufacturers had approved the game for manufacture.
No Doubt filed a complaint against Activision in superior court, seeking injunctive relief and damages for Activision's allegedly unauthorized exploitation of No Doubt's name, performances and likenesses. No Doubt alleged six causes of action: (1) fraudulent inducement; (2) violation of statutory and common law right of publicity; (3) breach of contract; unfair business practices in violation of Business and Professions Code section 17200; (5) injunctive relief; and (6) rescission.*fn2
Activision filed a special motion to strike pursuant to Code of Civil Procedure section 425.16 (section 425.16) specifically with respect to No Doubt's claims for violation of the right of publicity and unfair competition. The superior court denied the anti-SLAPP motion, holding that Activision failed to meet the required threshold showing that the challenged causes of action arose from protected activity in furtherance of free speech rights, and that Activision's literal reproductions of the images of the No Doubt members did not constitute a "transformative" use sufficient to bring them within the protection of the First Amendment. The court found that even if Activision had satisfied its initial burden, No Doubt had demonstrated a probability of prevailing on its claims because it convincingly argued that Activision had contracted away any First Amendment right to exploit the images of the No Doubt members except as provided by the agreement between the parties. As such, the court held, Activision had "waived the anti-SLAPP protections."
This timely appeal followed.
I. Anti-SLAPP Motion Procedure
Section 425.16 provides, in pertinent part, that "[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." (§ 425.16, subd. (b)(1).) The purpose of the statute is "to provide a procedural remedy to dispose of lawsuits that are brought to chill the valid exercise of constitutional rights." (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055-1056; § 425.16, subd. (a).) The provisions of section 425.16 must be "construed broadly" to effectuate the statute's purpose. (§ 425.16, subd. (a).)
A special motion to strike under section 425.16 entails a two-step process. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88 (Navellier).) First, the defendant must make a threshold showing that the challenged cause of action arises from protected activity. (Rusheen v. Cohen, supra, 37 Cal.4th at p. 1056.) If the defendant makes this showing, the burden shifts to the plaintiff to demonstrate a probability of prevailing on the merits of the claim. (Ibid.) The plaintiff must state and substantiate a legally sufficient claim: "'[p]ut another way, the plaintiff "must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited." [Citations.]'" (Ibid.) For purposes of this inquiry, "the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant [citation]." (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821; see § 425.16 subd. (b)(2).) However, "'the court does not weigh the evidence or make credibility determinations. [Citations.]'" (Ross v. Kish (2006) 145 Cal.App.4th 188, 197.) In addition to considering the substantive merits of the plaintiff's claims, the trial court must also consider all available defenses to the claims, including constitutional defenses. (Traditional Cat Assn., Inc. v. Gilbreath (2004) 118 Cal.App.4th 392, 398.)
"Only a cause of action that satisfies both prongs of the anti-SLAPP statute -i.e., that arises from protected speech or petitioning and lacks even minimal merit - is a SLAPP, subject to being stricken under the statute." (Navellier, supra, 29 Cal.4th at p. 89.) We review de novo whether the trial court should have granted Activision's special motion to strike, conducting an independent ...