## Facts

- Kierin Kirby (known as “Lady Miss Kier”), lead singer of Deee-Lite, claimed a distinctive retro-futuristic stage persona, including specific fashion elements and the catchphrase “ooh la la.”
- Sega distributed the video game *Space Channel 5*, a science-fiction dance game featuring Ulala, a fictional space-age television reporter who dances and battles enemies within a stylized futuristic narrative.
- Kirby alleged Ulala appropriated her identity and persona through similar look, style, hair/clothing elements, and use of “ooh la la” or a close variant.
- Kirby sued under California Civil Code § 3344 and common-law right of publicity, plus related claims premised on misappropriation of identity for commercial use.
- Sega moved for summary judgment, arguing Ulala was a transformative character in an expressive work protected by the First Amendment.
- The trial court granted summary judgment for Sega and awarded Sega attorney’s fees as the prevailing party under § 3344(a).
- Kirby appealed both the merits judgment and the fee award.

## Issues

1. Whether the First Amendment barred Kirby’s right-of-publicity claims because Ulala was a sufficiently transformative, expressive character rather than a literal appropriation of Kirby’s identity.
2. Whether attorney’s fees to the prevailing party under California Civil Code § 3344(a) are mandatory, or instead limited to suits that are frivolous, brought in bad faith, or without substantial justification.

## Decision

- The Court of Appeal affirmed summary judgment for Sega, holding Ulala was sufficiently distinctive and transformative to receive First Amendment protection, defeating Kirby’s right-of-publicity theories.
- The court treated the video game as protected expressive content and applied the transformative use test to balance publicity rights against First Amendment interests.
- The court affirmed the award of attorney’s fees to Sega under § 3344(a), concluding the statute mandates fees and costs to the prevailing party without a frivolousness or bad-faith requirement.
- The court remanded solely to determine the amount of reasonable attorney’s fees.

## Legal Principles

- Under California’s transformative use test, First Amendment protection applies where a work adds significant creative elements such that the depiction becomes more than a mere likeness or imitation.
- Even if a work draws from aspects of a person’s identity, liability is barred where the person’s identity is only “raw material” and the defendant’s expression predominates through substantial original and creative transformation.
- Video games are expressive works entitled to First Amendment protection, requiring constitutional balancing when right-of-publicity claims target characters within a game’s narrative and design.
- California Civil Code § 3344(a) provides mutual, mandatory fee shifting: the prevailing party in an action under the statute is entitled to reasonable attorney’s fees and costs.
- Courts may not add extra-statutory limits (such as frivolousness or bad faith) to § 3344(a) where the text is unqualified.

## Conclusion

The court held that Sega’s use of Ulala in *Space Channel 5* was constitutionally protected because the character and game contained substantial original expression and transformative elements, defeating Kirby’s right-of-publicity claims, and it enforced § 3344(a)’s mandatory award of attorney’s fees to the prevailing defendants, remanding only to set the fee amount.


Kirby v. Sega of Am., Inc., 144 Cal. App. 4th 47, 50 Cal. Rptr. 3d 607 (Cal. Ct. App. 2006)