Activision Loses to Block Pop Group Suing Over Image in `Band Hero' Game

Activision Blizzard Inc. lost its appeal of a California judge’s refusal to throw out a lawsuit by the band No Doubt over the way the musicians’ images are used in the “Band Hero” video game.

A panel of the California Court of Appeals in Los Angeles ruled today that Activision’s use of the No Doubt likenesses in “Band Hero” isn’t protected free speech under the U.S. Constitution’s First Amendment because it doesn’t add creative elements to significantly “transform” their depiction.

“The context in which Activision uses the literal likenesses of No Doubt’s members does not qualify the use of the likenesses for First Amendment protection,” the judges said. “Activision’s use of life-like depictions of No Doubt performing songs is motivated by the commercial interest in using the band’s fame to market ‘Band Hero.’”

Rival video-game maker Electronic Arts Inc. today argued in a federal appeals court in Pasadena, California, that its use of alleged likenesses of former college and National Football League players in its “NCAA Football” and “Madden NFL” games is protected by the First Amendment.

Ashley Dyer, a spokesman for Santa Monica, California-based Activision, didn’t immediately return a call to his office.

No Doubt sued Activision in 2009 for breach of contract, saying “Band Hero” allows likenesses of the band’s members to perform songs by other acts.

10 Cover Songs

No Doubt said in its complaint that in 23 years it has only released 10 cover songs. In its agreement with Activision, whereby the band licensed the game maker to use its work in the new version of “Guitar Hero,” No Doubt only permitted likenesses of the members to perform three of the band’s songs, according to the complaint.

A character manipulation feature of the game allows players to create virtual performances, including that of No Doubt singer Gwen Stefani performing the Rolling Stones’ “Honky Tonk Woman” with her computer character “in a male voice boasting about having sex with prostitutes,” according to the complaint.

One of the three judges on the appeals panel wrote separately to argue that the license agreement between the band and the video-game maker precludes Activision from seeking First Amendment protection.

“This was a commercial agreement that granted a limited license to Activision for use of No Doubt’s character likenesses,” Justice Norman Epstein said. “Having agreed to its terms, Activision cannot be heard to claim that its use of the property in ways expressly prohibited by the agreement is protected by the First Amendment.”

The case is No Doubt v. Activision, B223996, California Court of Appeals, Second District Los Angeles).

To contact the reporter on this story: Edvard Pettersson in Los Angeles at epettersson@bloomberg.net.

To contact the editor responsible for this story: John Pickering at jpickering@bloomberg.net.