No Doubt v. Activision Publishing, Inc.

Activision Publishing, Inc. (Activision) (defendant) was a video-game distributor and the creator and owner of the Band Hero video game. The game allowed players to simulate performing popular songs as part of a rock band. Players would choose from a number of avatars and perform as drummers, guitarists, or singers. Some of the avatars were fictional characters created by Activision, but other avatars that were representations of actual musicians could be unlocked. As these avatars, players could perform any number of songs in a wide variety of fantastic settings including Paris, Madrid, or outer space. Avatars could also be used to perform opposite-gender vocals. No Doubt, a famous rock band, entered a licensing agreement with Activision and permitted Activision to use the band members’ likenesses and songs in the Band Hero game. The agreement allowed Activision to use up to three No Doubt songs and the band members’ likenesses in promotional materials and within the games, subject to No Doubt’s approval of each use. When the game came out, No Doubt learned that its avatars could be unlocked and forced to perform songs that the band would never have performed, including those with opposite-gendered vocals. No Doubt complained to Activision that the band was not informed about the members’ likenesses’ being used for anything more than performing the No Doubt songs included in the game. No Doubt demanded that Activision block players’ ability to unlock the band’s avatars. Activision refused, and No Doubt filed suit for violation of its right of publicity, arguing that Activision used the members’ likenesses in a manner outside the scope of their licensing agreement. Activision filed a motion to strike, arguing that its use of the band members’ likenesses was protected by the First Amendment. The trial court denied the motion, and Activision appealed to the California Court of Appeal.