Kirby v. Sega of America, Inc.
California Court of Appeal
144 Cal. App. 4th 47, 50 Cal. Rptr. 3d 607 (2006)
- Written by Meredith Hamilton Alley, JD
Facts
Kierin Kirby (plaintiff) was the lead singer in a band. Kirby claimed that a character in a video game distributed by Sega of America, Inc. (Sega) (defendant) committed misappropriation of likeness under the California right-of-publicity statute. Sega moved for and won summary judgment on First Amendment grounds. The trial court ordered Kirby to pay Sega $608,000 for its attorneys’ fees based on the right-of-publicity statute, which stated that a party that prevailed on a cause of action brought under the statute “shall” be entitled to attorney’s fees and costs. Kirby appealed, conceding that the statutory language made the provision mandatory but that attorneys’ fees should only be awarded in suits that were frivolous or brought in bad faith or without substantial justification. Otherwise, she argued, awarding fees in those circumstances would incentivize plaintiffs to sue.
Rule of Law
Issue
Holding and Reasoning (Boland, J.)
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