Intellectual Property Law

No Doubt Sues Activision Under Right of Publiciy Claim

By Jonathan Menkes

The Orange County based rock band, No Doubt, has recently filed a lawsuit in Los Angeles Superior Court, claiming that Activision, the creator of Band Hero (the latest of the Guitar Hero series), exceeded its contractual terms that allowed activition to use the  likenesses of band members Gwen Stefani, Tony Kanal, Tom Dumont and Adrian Young in the video game.   As the band members see it, the game has made the members a part of a “virtual karaoke circus act.?

The complaint states that ?Activision has deceived and confused the public into believing that No Doubt authorized the use of its name and likeness for the Character Manipulation Feature of Band Hero and that No Doubt approves and endorses the appearance of its members individually performing songs that are wholly inappropriate and out of character for No Doubt.?   The band members view the Character Manipulation Feature as particularly problematic since users could, for example, have Stefani?s image sing to the Rolling Stones? ?Honky Tonk Woman.? 

Jim Gueiront, No Doubt’s manager, claimed ”[the members] are bitterly disappointed that their name and likeness [were] taken and used without their permission…[Activision] agreed to play three No Doubt songs as a band…. Activision then [without permission] put them in 62 other songs and broke the band up.? 

Activision believes it is within its legal rights and that the lawsuit is meritless: ?Activision has a written agreement to use No Doubt in Band Hero ? an agreement signed by No Doubt after extensive negotiations with its  representatives, who collectively have decades of experience in the entertainment industry.  Pursuant to that agreement, Activision worked with No Doubt and the band?s management in developing Band Hero.” 

To succeed on a right of publicity claim under California law, a plaintiff must show four elements: (1) the defendant’s use of the plaintiff’s identity; (2) the appropriation of plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury.  Hilton v. Hallmark Cards, 580 F.3d 874, 889 (9th Cir. 2009); Downing v. Abercrombie & Fitch, 265 F.3d 994, 1001 (9th Cir. 2001).  

It will be interesting to see how elements 3 and 4 will be litigated. 

(http://latimesblogs.latimes.com/music_blog/2009/11/no-doubt-sues-activision-over-band-hero.html)

Full post as published by BC Law Intell. Prop. & Tech. Forum on November 12, 2009 (boomark / email).