## Facts

- Activision published *Band Hero*, a music video game where players control on-screen avatars performing songs on virtual stages.
- No Doubt and its members licensed Activision to use their likenesses as playable characters, subject to contractual limits, including that the avatars would perform No Doubt songs and not be used in unapproved ways.
- After release, No Doubt learned players could use the band members’ avatars in alternate modes to perform songs by other artists in the game’s catalog.
- The game also permitted modifications such as “gender-bending” and other alterations (e.g., a band member’s avatar singing in a different voice), which No Doubt alleged were unauthorized.
- No Doubt sued for statutory and common law right of publicity, unfair competition, breach of contract, and related claims.
- Activision filed an anti-SLAPP motion, arguing the claims targeted protected expressive activity and were barred by the First Amendment under the transformative use test.
- The trial court denied the anti-SLAPP motion as to the right of publicity and unfair competition claims (but granted it as to certain misrepresentation-based claims), and Activision appealed the denial.

## Issues

1. Whether the challenged right of publicity and unfair competition claims arose from protected speech activity under California’s anti-SLAPP statute.
2. Whether the First Amendment barred the right of publicity claims because the use of No Doubt’s likenesses in *Band Hero* was sufficiently transformative.

## Decision

- The court held Activision satisfied anti-SLAPP step one because the video game was an expressive work involving matters of public interest (music and popular culture), and the claims arose from protected activity.
- The court affirmed the denial of the anti-SLAPP motion at step two because No Doubt showed a probability of prevailing on the statutory and common law right of publicity and unfair competition claims.
- The court held Activision’s use of No Doubt’s likenesses was not transformative as a matter of law where the avatars were realistic, readily identifiable depictions of the band members performing essentially the same role they occupy as celebrities (performing music onstage).
- The court rejected arguments that fictional venues, optional gameplay scenarios, cosmetic changes, and user interactivity supplied sufficient transformation, because the relevant question was whether Activision’s depiction added significant creative elements beyond a literal imitation.
- The disposition left undisturbed the portions of the trial court’s order granting anti-SLAPP relief on other claims not at issue in the appeal.

## Legal Principles

- California’s anti-SLAPP statute applies through a two-step inquiry: (1) the defendant shows the claim arises from protected petitioning or speech activity connected to a public issue; (2) the plaintiff shows a probability of prevailing on the merits.
- Video games qualify as expressive works, and use of celebrity likenesses in such works may constitute protected speech activity for anti-SLAPP step one.
- Under California’s transformative use test, the First Amendment protects use of a person’s likeness only when the work adds significant creative elements so the depiction is primarily the defendant’s expression rather than the literal depiction being the sum and substance of the work.
- A realistic, computer-generated recreation of a celebrity doing what the celebrity is known for (without significant alteration of identity or meaning) is generally not transformative for right of publicity purposes.
- Interactivity and player control do not, by themselves, convert a defendant’s literal depiction into a transformative use; the focus remains on the defendant’s creative treatment of the likeness.

## Conclusion

The court concluded that although *Band Hero* was protected expressive activity for anti-SLAPP step one, No Doubt’s right of publicity and unfair competition claims could proceed because the game’s realistic, literal avatars were not transformed into something primarily reflecting Activision’s own expression.


No Doubt v. Activision Publ’g, Inc., 192 Cal. App. 4th 1018 (Cal. Ct. App. 2011)