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Lewis v. Activision Blizzard, Inc.

United States District Court, N.D. California

September 25, 2014

AMANDA LEWIS, Plaintiff,
ACTIVISION BLIZZARD, INC., et al., Defendants.


CLAUDIA WILKEN, District Judge.

Plaintiff Amanda Lewis brought this action against her former employer, Defendants Activision Blizzard, Inc., and Blizzard Entertainment, Inc. (collectively, Blizzard), alleging federal copyright infringement and state-law claims for commercial misappropriation of voice pursuant to section 3344 of the California Commercial Code and quantum meruit. Blizzard has prevailed on each of those claims, and now moves for an award of attorneys' fees and costs. After considering the parties' submissions, the Court GRANTS the motion in part.


Blizzard develops, markets, and distributes video games, including World of Warcraft (WoW), a multiplayer online role-playing game. Lewis was employed by Blizzard from May 2005 to August 2006 as a "game master, " a sort of customer service role in which she answered customers' questions and offered assistance with various aspects of the game. In July 2005, Lewis auditioned for voiceover work related to WoW, and she was selected to record a voice for a newly created game character called the "baby murloc." In September 2005, Plaintiff participated in two recording sessions. She was compensated for her time at her usual hourly rate, and did not seek additional compensation for her work on the recordings. Lewis's employment was terminated in August 2006, and sometime later she learned that the recordings were being used not only for promotional purposes, as she initially thought, but also in the WoW game, itself.

Lewis filed this lawsuit in March 2012. On October 22, 2012, the Court granted Blizzard's motion to dismiss the state-law claims[1] which the Court found to be both preempted by federal copyright law and time-barred. Lewis filed her amended complaint on November 13, 2012, alleging only the federal copyright claim. On October 17, 2013, the Court granted Blizzard's motion for summary judgment.


The Court had original jurisdiction over Lewis's copyright claim pursuant to 17 U.S.C. § 501 and 28 U.S.C. §§ 1331 and 1338, and supplemental jurisdiction over Lewis's state-law claims pursuant to 28 U.S.C. § 1367.

I. Attorneys' Fees

A. Right of Publicity Claim

In the Ninth Circuit, state law governs applications for attorneys' fees in cases where a federal court exercises diversity or supplemental jurisdiction. Mangold v. Cal. Pub. Utils. Comm'n , 67 F.3d 1470, 1478 (9th Cir. 1995); Synapsis, LLC v. Evergreen Data Sys., Inc., 2006 WL 3302432, at *2 (N.D. Cal.). Because the Court exercised supplemental jurisdiction over Lewis's state law claims, California law applies to the motion with regard to those claims.

California Civil Code section 3344(a) provides, in relevant part, "The prevailing party in any action under this section shall also be entitled to attorney's fees and costs." This language makes the award of attorneys' fees and costs to the prevailing party mandatory. Love v. Assoc. Newspapers, Ltd. , 611 F.3d 601, 614 (9th Cir. 2010) ("section 3344 clearly mandates an award of attorney's fees"); accord Kirby v. Sega of Am., Inc. , 144 Cal.App.4th 47, 62 (2006) ("The mandatory fee provision in section 3344 subdivision a leaves no room for ambiguity.").

Lewis argues (1) that Blizzard did not prevail on her state law right of publicity claim, but instead merely "prevailed on the argument that Ms. Lewis' claim was preempted by federal copyright law"; and (2) that because her right of publicity claim was preempted by the federal copyright statute, Blizzard's claim to attorneys' fees is similarly preempted. These arguments are not persuasive, and are contrary to Ninth Circuit precedent.

In determining that Lewis's right of publicity claim was preempted by federal copyright law, the Court relied heavily on the Ninth Circuit's opinion in Laws v. Sony Music Entm't, Inc. , 448 F.3d 1134 (2006), in which the district court held, and the Ninth Circuit affirmed, that the plaintiff's right of publicity claims were preempted by federal copyright law. In Laws, the defendant was found to have prevailed, and the district court awarded the defendant $97, 000 in attorneys' fees. Laws, No. 3-2038, Order (Docket No. 64) (C.D. Cal. 2004). Although attorneys' fees were not a subject of the Ninth Circuit's published opinion, the circuit court subsequently entered an order awarding the defendant an additional $60, 368.40 in attorneys' fees pursuant to section 3344. Laws, No. 3-57102, Order (Docket No. 42) (9th Cir. 2006).

Thus, where a plaintiff brings a claim under section 3344 and, as here, that claim fails as a matter of law, the defendant has prevailed on that claim and is entitled to recover attorneys' fees. See, e.g. Love, 61 F.3d at 614 (defendant in section 3344 action entitled to attorneys' fees where, under choice-of-law analysis, section 3344 did not govern the plaintiff's claim); Page v. Something Weird Video , 960 F.Supp. 1438, 1446 (C.D. Cal. 1996) (in section 3344 action, "[o]bviously the defendant prevails when the plaintiff recovers nothing" (quoting 7 B.E. Witkin, California Procedure, Judgment § 88 at ...

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