This week is shaping up to be a big one in the ongoing struggle to figure out the difference between commercial and expressive speech, the times when entertainment companies can show public figures in the name of the First Amendment and the times when they can’t due to violations of a celebrity’s right to control their own publicity.
Just as the Ninth Circuit Court of Appeals was hearing an important case involving former NCAA athletes fighting Electronic Arts over use of their image in sports video games, the California Court of Appeals was weighing in on a similar dispute involving the band No Doubt and Activision Blizzard, makers of the game, “Band Hero.” A panel of justices has given the go-ahead to the band to proceed with its lawsuit against Activision alleging publicity rights violations and breach of contract.
No Doubt originally sued Activision in 2009 after it was shocked to learn that “Band Hero” allowed game-players to “unlock” special features of the game and manipulate avatars to engage in unapproved acts, from having a Gwen Stefani virtual character perform the Rolling Stones‘ “Honky Tonk Woman” in a male voice to making band members do unrealistic dance moves. No Doubt asserted that its agreement with Activision granting publicity rights didn’t cover these unanticipated features.
Activision countersued with an anti-SLAPP motion that argued No Doubt’s lawsuit amounted to a chill of free speech.
As usual in these sorts of disputes, the question becomes whether the speech — in this case, the game — amounted to a “transformative use” of the celebrity’s image, in which case it falls under First Amendment protection. The California Appeals Court says that Activision’s use of No Doubt isn’t sufficiently transformative, finding that the images in the game were nothing “more than literal, fungible reproductions of their likenesses.”
The case may proceed to trial unless it is appealed further, which very may well depend on the outcome of those former NCAA athletes fighting Electronic Arts.
Yesterday, the justices at the Ninth Circuit heard arguments from the attorneys.
Kelli Sager, who is representing Electronic Arts, told the Ninth Circuit that courts should focus on works as a whole, not just individual elements, when examining the issue of what’s transformative. She argued that video games are constitutionally protected works of expression.
“The First Amendment protects all kinds of expressive work,” she said. “Video games, particularly one like this that have all these different elements, are also expressive work, and you’re allowed to use names and people’s likenesses in expressive work.”
Steve Berman is representing the class of plaintiffs in the dispute and wants the Ninth Circuit to see video games as commercial items and focus on the nitty gritty when examining the exploitation of a celebrity in a video game.
“If you’re using that person’s identity to make money, that’s not protected, that’s theft of likeness,” he told the panel. “If you’re using the name Ghandi in an expressive film about the revolution there, that’s protected, that’s expressive…This game is not expressive. It’s like the Wheaties box. They’ve taken the images from head to toe …and put it in their game for commercial purposes.”