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Keywords

plaintiffdefendantattorneyappealtrialcommon law

plaintiffdefendantattorneyappealcommon law

Related Cases

Kirby v. Sega of America, Inc., 144 Cal.App.4th 47, 50 Cal.Rptr.3d 607, 81 U.S.P.Q.2d 1172, 35 Media L. Rep. 1075, 06 Cal. Daily Op. Serv. 9978, 2006 Daily Journal D.A.R. 14,190

Facts

Issue

Did the creation of the video game character Ulala constitute a misappropriation of Kirby's likeness and identity, and was the First Amendment a valid defense against her claims?

Rule

The common law claim for invasion of privacy through appropriation requires unauthorized use of a plaintiff's identity for the defendant's advantage, resulting in injury. The First Amendment protects expressive works, including video games, if they contain significant transformative elements that add new expression or meaning, thus providing a complete defense against claims of misappropriation.

The elements of a common law claim for invasion of privacy for appropriation are the unauthorized use of the plaintiff's identity to the defendant's advantage by appropriating the plaintiff's name, voice, likeness, etc., commercially or otherwise, and resulting injury.

Analysis

The court analyzed whether Ulala was a transformative work by comparing her characteristics to Kirby's. While there were similarities, the court found that Ulala's design, setting, and expressive content were sufficiently distinct to qualify as transformative. The First Amendment protections were deemed applicable as Ulala was not merely a literal depiction of Kirby but rather an original character that incorporated elements of Kirby's persona while adding new creative expression.

Video game character was transformative and protected by the First Amendment; notwithstanding certain similarities between character and celebrity who alleged claims for infringement of her common law right of publicity, statutory misappropriation of likeness, unfair competition, interference with prospective business advantage, and a Lanham Act violation against game distributors, First Amendment afforded distributors a complete defense to all of those claims, since the game character contained sufficient expressive dissimilar content to constitute a protected transformative work.

Conclusion

The Court of Appeal affirmed the trial court's decision, holding that the character Ulala was transformative and protected by the First Amendment, thus providing a complete defense to Kirby's claims.

The Court of Appeal is bound to follow the decisions of the state Supreme Court, not those of another state.

Who won?

The video game distributors prevailed in this case because the court found that the character Ulala was transformative and thus protected under the First Amendment. The court emphasized that the character contained sufficient expressive content that distinguished it from Kirby's likeness, allowing the defendants to assert a complete defense against the misappropriation claims. As a result, the court awarded the distributors attorney fees as prevailing parties.

Video game distributors who prevailed in asserting First Amendment defense to celebrity's misappropriation of likeness claim were entitled to mandatory award of attorney fees.

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