October 03, 2012 3:38pm PT by Eriq Gardner
No Doubt, Activision Settle Lawsuit Over Avatars in 'Band Hero'
Gwen Stefani and No Doubt have settled a lawsuit against Activision that contended the Band Hero game featured their unauthorized likenesses in digital avatar form.
The lawsuit was filed three years ago and had the potential to be an important case concerning publicity rights and contract law in the digital age.
No Doubt admitted it had a written contract with Activision, but alleged that the game publisher had gone beyond its agreement. Band members objected to the fact that the game featured them performing over 60 songs they had never performed in real life and hadn't agreed to perform in the game.
When the video game came out, game players quickly discovered the ability to "unlock" special features of Band Hero. Using a feature allowing character manipulation, game players could do things like having the Gwen Stefani avatar perform the Rolling Stone's "Honky Tonk Woman" in a male voice while her bandmates did kooky dance moves.
This upset Stefani.
She was a fan of the Rolling Stones, but the complaint said it was "unauthorized" to have her "boasting about having sex with prostitutes."
Although the case is now settled on undisclosed terms just weeks before it was scheduled to be go before a jury, the dispute did have some impact.
After it was filed, Activision not only brought counterclaims that alleged No Doubt was the one breaching the contract for failing to live up to obligations to promote the game, but the game publisher also brought an anti-SLAPP motion that argued No Doubt's publicity rights claims amounted to a chill of free speech.
That eventually led to a ruling in February, 2011, where an appellate court weighed whether contract disputes over video games implicated the First Amendment -- the judges agreed with Activision and said "yes" -- and then, No Doubt's likelihood of success.
Activision argued that its use of No Doubt's likenesses was fair because its game was "transformative." The band countered that the motion-captured recreations were too "realistic" to qualify as transformative.
A California state appeals court gave the edge to Stefani, ruling that while video games get free speech protection, the First Amendment doesn't bar a right of publicity claim like this...
"In Band Hero...no matter what else occurs in the game during the depiction of the No Doubt avatars, the avatars perform rock songs, the same activity by which the band achieved and maintains its fame. Moreover, the avatars perform those songs as literal recreations of the band members. That the avatars can be manipulated to perform at fanciful venues including outer space or to sing songs the real band would object to singing, or that the avatars appear in the context of a video game that contains many other creative elements, does not transform the avatars into anything other than exact depictions of No Doubt's members doing exactly what they do as celebrities."
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