Doubt

INTRODUCTION

The rock band No Doubt brought suit against the video game publisher Activision Publishing, Inc. (Activision), based on Activision’s release of the Band Hero video game featuring computer-generated images of the members of No Doubt. No Doubt licensed the likenesses of its members for use in Band Hero, but contends that Activision used them in objectionable ways outside the scope of the parties’ licensing agreement. Activision filed a special motion to strike under Code of Civil Procedure section 425.16, contending that No Doubt cannot demonstrate a probability of prevailing on its claims for violation of the right of publicity (Civ. Code, § 3344 and common law) and unfair competition (Bus. & Prof. Code, § 17200) because its use of the No Doubt likenesses is protected by the First Amendment. Activision appeals from the trial court’s denial of its motion. Applying the transformative use test first adopted in Comedy III Productions, Inc. v. Gary Saderup, Inc. (2001) 25 Cal.4th 387 [ 106 Cal.Rptr.2d 126 , 21 P.3d 797 ], we conclude that the creative elements of the Band Hero video game do not transform the images of No Doubt’s band members into anything more…

The majority opinion in this case affirms the decision of the trial court, which denied Activision’s special motion to strike under Code of Civil Procedure section 425.16 (the anti-SLAPP (strategic lawsuit against public participation) law). I agree with that result, and concur in the judgment. In its analysis, the majority decides, first, that appellant’s claims arose from First Amendment-protected activity, and hence satisfy the first prong of the test for motions under the anti-SLAPP statute. I agree with the majority’s reasoning and conclusion on that issue. (See Navellier v. Sletten (2002) 29 Cal.4th 82, 88 [ 124 Cal.Rptr.2d 530 , 52 P.3d 703 ].)

The majority then discusses the second prong of the test: whether No Doubt made a prima facie showing of probability that it would prevail on the merits of its lawsuit. It does so on a First Amendment basis, finding that the challenge to Activision Publishing, Inc.’s use of No Doubt characters and likenesses in its video game does not satisfy the “transformative use” doctrine of Comedy III Productions, Inc. v. Gary Saderup, Inc. (2001) 25 Cal.4th 387, *1041 391 [ 106 Cal.Rptr.2d 126 , 21 P.3d 797 ] (Comedy III). Because of that…