Lewis v. Activision Blizzard, Inc. et al
Filing
26
ORDER by Judge Claudia Wilken ON 14 MOTION TO DISMISS SECOND AND THIRD CLAIMS FOR RELIEF. (ndr, COURT STAFF) (Filed on 10/22/2012)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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AMANDA LEWIS,
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Plaintiff,
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No. C 12-1096 CW
ORDER ON MOTION TO
DISMISS SECOND AND
THIRD CLAIMS FOR
RELIEF
v.
ACTIVISION BLIZZARD, INC., et
al.,
Defendants.
________________________________/
United States District Court
For the Northern District of California
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Plaintiff Amanda Lewis filed this action against Defendants
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Activision Blizzard, Inc. and Blizzard Entertainment, Inc.
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(collectively, Blizzard) alleging claims under federal copyright
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law and state law.
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Lewis’s state law claims for commercial misappropriation of voice
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pursuant to section 3344 of the California Civil Code and for
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quantum meruit.
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the papers.
Blizzard filed the instant motion to dismiss
Lewis opposes the motion, which is submitted on
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BACKGROUND
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Lewis worked for Blizzard as a “Game Master” for World of
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Warcraft (WoW), a multiplayer online role-playing game developed
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and owned by Blizzard.
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in a customer-service position responsible for in-game issues such
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as abusive language or players becoming unable to move in the
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game.
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Compl. ¶¶ 2, 13, 16.
Lewis was employed
Compl. ¶ 16.
While Lewis was employed by Blizzard, she responded to an
27
email requesting voices for game creatures.
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Blizzard recorded Lewis’s voice and an original song that she
Compl. ¶ 17.
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allegedly developed, and applied her vocal work to WoW creatures
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called baby murlocs, which are virtual pets.
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Lewis alleges that, since at least November 2005, baby murloc pets
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employing her voice and derivatives thereof have been awarded to
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attendees of BlizzCon and other WoW-related events such as arena
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tournaments.
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baby murlocs through its online store.
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Compl. ¶ 20.
Compl. ¶ 17, 21.
Blizzard also sells plush versions of
Compl. ¶ 20.
Lewis has filed applications for copyright registration for
her work in baby murloc expressions and the baby murloc song,
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United States District Court
For the Northern District of California
9
which she alleges have been incorporated into WoW without her
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permission.
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that she was not employed by Blizzard to produce creative content,
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did not receive additional compensation for her creative work, and
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did not assign any rights in copyright to Blizzard.
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Compl. ¶ 21; Defs’ RJN Exs. 1, 2.1
Lewis alleges
Compl. ¶ 21.
Lewis filed this action against Blizzard on March 5, 2012,
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alleging the following claims for relief: copyright infringement
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pursuant to 17 U.S.C. § 501, unauthorized use of voice in
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violation of California Civil Code section 3344, and quantum
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meruit.
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dismiss pursuant to Rule 12(b)(6), seeking dismissal of the claims
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under state law.
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On April 26, 2012, Blizzard filed the instant motion to
The matter is fully briefed and submitted.
LEGAL STANDARD
A complaint must contain a “short and plain statement of the
claim showing that the pleader is entitled to relief.”
Fed. R.
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26
27
28
1
Pursuant to Federal Rule of Evidence 201, the Court takes
judicial notice of Lewis’s applications for copyright registration
which are matters of public record and the subject of allegations
in the complaint. See Compl. ¶ 21.
2
1
Civ. P. 8(a).
2
state a claim, dismissal is appropriate only when the complaint
3
does not give the defendant fair notice of a legally cognizable
4
claim and the grounds on which it rests.
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Twombly, 550 U.S. 544, 555 (2007).
6
complaint is sufficient to state a claim, the court will take all
7
material allegations as true and construe them in the light most
8
favorable to the plaintiff.
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896, 898 (9th Cir. 1986).
On a motion under Rule 12(b)(6) for failure to
Bell Atl. Corp. v.
In considering whether the
NL Indus., Inc. v. Kaplan, 792 F.2d
However, this principle is inapplicable
United States District Court
For the Northern District of California
10
to legal conclusions; “threadbare recitals of the elements of a
11
cause of action, supported by mere conclusory statements,” are not
12
taken as true.
13
(citing Twombly, 550 U.S. at 555).
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
14
When granting a motion to dismiss, the court is generally
15
required to grant the plaintiff leave to amend, even if no request
16
to amend the pleading was made, unless amendment would be futile.
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Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911
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F.2d 242, 246-47 (9th Cir. 1990).
19
amendment would be futile, the court examines whether the
20
complaint could be amended to cure the defect requiring dismissal
21
“without contradicting any of the allegations of [the] original
22
complaint.”
23
Cir. 1990).
24
In determining whether
Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th
Although the court is generally confined to consideration of
25
the allegations in the pleadings, when the complaint is
26
accompanied by attached documents, such documents are deemed part
27
of the complaint and may be considered in evaluating the merits of
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3
1
a Rule 12(b)(6) motion.
2
1265, 1267 (9th Cir. 1987).
3
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Durning v. First Boston Corp., 815 F.2d
DISCUSSION
I.
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Preemption
Blizzard contends that Lewis’s claims for commercial misuse
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of her voice (or right to publicity) and quantum meruit are
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preempted by the Copyright Act, 17 U.S.C. § 301.
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must be satisfied to apply the preemption provision of the
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Copyright Act to state law claims: (1) “‘the content of the
Two conditions
United States District Court
For the Northern District of California
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protected right must fall within the subject matter of copyright
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as described in 17 U.S.C. §§ 102 and 103’” and (2) “‘the right
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asserted under state law must be equivalent to the exclusive
13
rights contained in section 106 of the Copyright Act.’”
14
Sybersound Records, Inc. v. UAV Corp., 517 F.3d 1137, 1150 (9th
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Cir. 2008) (quoting Downing & Abercrombie & Fitch, 265 F.3d 994,
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1003 (9th Cir. 2001)).
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Lewis does not dispute that the recordings at issue fall
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within the subject matter of copyright and satisfy the first prong
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of the preemption test.
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preemption test, Lewis’s claims, as currently plead, assert rights
21
equivalent to those protected within the general scope of
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copyright and are therefore preempted.
Opp. at 5.
As to the second prong of the
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The “equivalent rights” prong of the test requires a court to
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consider whether the state claim asserts rights within the general
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scope of copyright as specified by section 106 of the Copyright
26
Act.
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Section 106 provides a copyright owner with the
exclusive rights of reproduction, preparation of
derivative works, distribution, and display. To
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survive preemption, the state cause of action must
protect rights which are qualitatively different
from the copyright rights. The state claim must
have an extra element which changes the nature of
the action.
1
2
3
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Laws, 448 F.3d 1134, 1143 (9th Cir. 2006) (quoting Del Madera
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Props. v. Rhodes & Gardner, 820 F.2d 973 (9th Cir. 1987)).
6
In Laws, the court held that the Copyright Act preempted a
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claim under the commercial misappropriation statute, Cal. Civil
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Code § 3344, based on an allegedly unauthorized publication of a
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musical recording.
There, the plaintiff, Debra Laws, recorded the
United States District Court
For the Northern District of California
10
1981 song “Very Special,” which was sampled in a song, “All I
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Have,” performed by Jennifer Lopez in 2002 and produced by Sony
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Music Entertainment, Inc.
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privacy and for misappropriation under section 3344 against Sony,
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which argued that the claims were preempted by the Copyright Act.
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The court noted that the Copyright Act extends protection to
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“original works or authorship fixed in any tangible medium of
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expression from which they can be reproduced,” and that a work is
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“fixed” in a tangible medium “when its embodiment in a copy or
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phono record, by or under the authority of the author, is
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sufficiently permanent or stable to permit it to be perceived,
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reproduced, or otherwise communicated for a period of more than
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transitory duration.”
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§ 101).
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Laws brought claims for invasion of
Laws, 448 F.3d at 1139 (quoting 17 U.S.C.
Distinguishing Ninth Circuit decisions holding that claims
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concerning imitation of a voice were not preempted, the court in
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Laws noted that Sony did not imitate the plaintiff’s voice or
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singing style but used the recording of her vocal performance.
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Id. at 1140-41.
In Waits v. Frito-Lay, Inc., 978 F.2d 1093, 1100
5
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(9th Cir. 1992), by contrast, the court held that the right of
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publicity claim was not preempted because the defendants imitated
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the artist’s voice rather than using a “copyrightable subject such
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as a sound recording or musical composition.”
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Midler v. Ford Motor Co., 849 F.2d 460, 462 (9th Cir. 1988), the
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court held that copyright law did not preempt Bette Midler’s
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misappropriation claim for imitating her voice for advertising
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purposes because a “voice is not copyrightable.”
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claims for voice misappropriation in Waits and Midler, the
Similarly, in
Unlike the
United States District Court
For the Northern District of California
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plaintiff in Laws asserted a misappropriation claim based on
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Sony’s unauthorized use of a sound recording of her vocal
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performance, which was therefore preempted by copyright law.
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Laws, 448 F.3d at 1140-41.
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plaintiff’s argument that her right to publicity claim was not
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preempted because she alleged unauthorized duplication of her
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vocal performance, and held that copyright law preempted a voice
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misappropriation claim “when the entirety of the allegedly
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misappropriated vocal performance is contained within a
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copyrighted medium.”
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“Sony did not use Laws’s image, name, or the voice recording in
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any promotional materials.
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control of the artistic work itself and could hardly be more
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closely related to the subject matter of the Copyright Act.”
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at 1142.
The court in Laws rejected the
Id. at 1141.
The court in Laws reasoned,
Her state tort action challenges
Id.
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Like Laws’s, Lewis’s claim for commercial misuse of her
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voice, pursuant to Civil Code section 3344, is based entirely on
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the alleged use of recordings of her voice or vocal performance.
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Section 3344 protects the right of publicity against “[a]ny person
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who knowingly uses another’s name, voice, signature, photograph,
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or likeness . . . on or in products, merchandise, or goods, or for
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purposes of advertising or selling, . . . without such person's
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prior consent.”
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allege that Blizzard used or imitated any aspect of her voice that
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was not contained in the recordings.
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has and continues to use, leverage and profit from Ms. Lewis’
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Copyrighted Works without permission.”).
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Laws, “[a]lthough California law recognizes an assertable interest
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United States District Court
For the Northern District of California
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in the publicity associated with one’s voice, we think it is clear
11
that federal copyright law preempts a claim alleging
12
misappropriation of one’s voice when the entirety of the allegedly
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misappropriated vocal performance is contained within a
14
copyrighted medium.”
15
Video, Inc. v. 144942 Canada Inc., 617 F.3d 1146, 1153 (9th Cir.
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2010) (concluding that right of publicity claim was preempted and
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remanding for entry of judgment for the plaintiff on copyright
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claim, which was affirmed on subsequent appeal, 468 Fed. Appx. 676
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(9th Cir.), cert. denied, 81 U.S.L.W. 3030 (Oct. 1, 2012)); No
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Doubt v. Activision Publishing, Inc., 702 F. Supp. 2d 1139, 1145
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(C.D. Cal. 2010) (holding that name, physical likeness and persona
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are not copyrightable, but noting that “if Plaintiff were suing on
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the basis of Defendant’s misuse of Plaintiff’s songs or videotaped
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musical performance, its claims would be preempted by the
25
Copyright Act.”).
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voice recordings, federal copyright law preempts her claim for
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commercial misappropriation.
Cal. Civ. Code § 3344.
Here, Lewis does not
See Compl. ¶ 21 (“Blizzard
448 F.3d at 1141.
As the court held in
See also Jules Jordan
Because Lewis alleges unauthorized use of her
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1
Similarly, Lewis’s claim for quantum meruit recovery is based
2
entirely on seeking compensation for Blizzard’s alleged use of her
3
voice recordings.
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defendants to record her voice, she did not give authorization to
5
use her voice and creative content and variations thereof for
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World of Warcraft or for the promotion of World of Warcraft.”).
7
Under California law, “[q]uantum meruit refers to the well-
8
established principle that ‘the law implies a promise to pay for
9
services performed under circumstances disclosing that they were
See Compl. ¶ 41 (“While Ms. Lewis permitted
United States District Court
For the Northern District of California
10
not gratuitously rendered.’”
11
Cal. 4th 453, 458 (2004) (quoting Long v. Rumsey, 12 Cal.2d 334,
12
342 (1938)).
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registration of her baby murloc vocal expressions and baby murloc
14
song, recorded when she was employed by Blizzard.
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Thus, her quantum meruit claim seeking “compensation for the use
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and benefit defendants have obtained from the uncompensated use of
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her voice and creative content” contained in these recordings
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asserts rights that are equivalent to Lewis’s rights under
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copyright law, and is also preempted.
20
Huskinson & Brown, LLP v. Wolf, 32
Lewis alleges that she has applied for copyright
Compl. ¶ 21.
In her opposition, Lewis does not address the key question
21
whether her claims are limited to her rights in works fixed in a
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tangible medium of expression, i.e., the recordings, but argues
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that her state law claims should proceed in the alternative in the
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event that Blizzard prevails against her copyright claim.
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6.
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falling within the scope of the federal Copyright Act are subject
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to preemption.
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that is preempted by copyright law may not be plead under the
8
Opp. at
Under section 301, however, all state law causes of action
Laws, 448 F.3d at 1137.
Thus, a state law claim
1
guise of an alternative or inconsistent theory of recovery.
2
“Whether a claim is preempted under Section 301 does not turn on
3
what rights the alleged infringer possesses, but on whether the
4
rights asserted by the plaintiff are equivalent to any of the
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exclusive rights within the general scope of the copyright.”
6
Jules Jordan Video, 617 F.3d at 1154-55.
7
As currently plead, Lewis’s claims for commercial misuse of
8
voice and quantum meruit are based wholly on Blizzard’s use of her
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voice recordings and are therefore dismissed as preempted by
United States District Court
For the Northern District of California
10
federal copyright law.
11
futile, Lewis is granted leave to amend her state law claims only
12
to the extent that she can allege, subject to Rule 11, commercial
13
misuse of her “name, voice, signature, photograph, or likeness”
14
that is not fixed in a recording.
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II.
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Because amendment does not appear to be
Statute of Limitations
Blizzard also seeks dismissal of Lewis’s claims as time-
17
barred under the governing two-year statute of limitations.
18
at 10-11.
19
period in California for commercial misappropriation under section
20
3344 and quantum meruit is two years.
21
Klein, 264 F.3d 936, 950 (9th Cir. 2001) (citing Cal. Code Civ.
22
Proc. § 339(1)).
23
California law are subject to the single-publication rule as
24
codified by Civil Code section 3425.3.2
25
v. Nestle USA, Inc., 47 Cal. 4th 468, 476 (2009).
Lewis does not dispute that the applicable limitations
27
2
Opp. at 7.
See Cusano v.
Lewis further agrees that her claims under
26
28
Mot.
Section 3425.3 provides,
9
Opp. at 7.
See Christoff
1
“‘The single-publication rule limits tort claims premised on
2
mass communications to a single cause of action that accrues upon
3
the first publication of the communication, thereby sparing the
4
courts from litigation of stale claims when an offending book or
5
magazine is resold years later.’”
6
1076, 1081 (9th Cir. 2012) (quoting Roberts v. McAfee, Inc., 660
7
F.3d 1156, 1166–67 (9th Cir. 2011)), petition for reh’g and reh’g
8
en banc filed Oct. 1, 2012.
9
statements are generally considered ‘published’ when they are
Yeager v. Bowlin, 693 F.3d
“In print and on the internet,
United States District Court
For the Northern District of California
10
first made available to the public.”
11
single-publication rule, the statute of limitations is reset when
12
a statement is republished.
13
is republished when it is reprinted in something that is not part
14
of the same ‘single integrated publication.’”
15
(quoting Christoff, 47 Cal. 4th at 477).
Id. at 1081-82.
“Under the
A statement in a printed publication
Id. at 1082
16
Plaintiff contends that WoW is not a single game or
17
publication, but a franchise of four separate, independently
18
playable games: the classic World of Warcraft, released November
19
2004; World of Warcraft: The Burning Crusade, released January
20
2007; World of Warcraft: Wrath of the Lich King, released November
21
2008; and World of Warcraft: Cataclysm, released December 2010.
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No person shall have more than one cause of action
for damages for libel or slander or invasion of
privacy or any other tort founded upon any single
publication or exhibition or utterance, such as any
one issue of a newspaper or book or magazine or any
one presentation to an audience or any one broadcast
over radio or television or any one exhibition of a
motion picture. Recovery in any action shall include
all damages for any such tort suffered by the
plaintiff in all jurisdictions.
10
1
Opp. at 8.
2
expansion packs are part of a single WoW video game product,
3
subject to the single publication rule.
4
does not include any allegations about the subsequent versions of
5
WoW or expansion packs in the complaint, which alleges only that
6
Blizzard has commercially used Lewis’s voice recordings since at
7
least November 2005.
8
does not allege that Lewis’s voice was used in the later versions
9
of WoW.
Blizzard responds that the subsequently released
Compl. ¶ 20.
Reply at 6.
Plaintiff
Furthermore, the complaint
As currently plead, Lewis’s state law claims for
United States District Court
For the Northern District of California
10
commercial misappropriation are time-barred, as well as preempted
11
by copyright law.
12
Lewis contends that she is entitled to discovery to determine
13
whether Blizzard misappropriated her voice in later versions or
14
editions of the WoW game, in order to prevent application of the
15
single publication rule from barring her claims.
16
Lewis cites Christoff, where the state supreme court remanded the
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plaintiff’s claim for unauthorized commercial use of his likeness
18
on coffee jar labels to develop evidence on the question whether
19
the labels produced over a period of years constituted a single
20
integrated publication.
21
Christoff held that the applicability of the single publication
22
rule could not be determined “without the benefit of a sufficient
23
factual record that reveals the manner in which the labels were
24
produced and distributed, including when production of the labels
25
began and ceased.”
26
47 Cal. 4th at 482.
Opp. at 8-9.
The court in
47 Cal. 4th at 482.
The question whether the expansion packs constitute separate
27
publications, rather than a single publication, cannot be
28
determined on the current state of the pleadings and it appears to
11
1
present factual issues that are not appropriate for review under
2
Rule 12(b)(6).
3
applying the single publication rule to software and expansion
4
packs or new versions of software.
5
in the context of internet publications, the Ninth Circuit has
6
recently articulated that, under California law, a statement on a
7
website is not republished unless the statement itself is
8
substantively altered or added to, or the website is directed to a
9
new audience.
Furthermore, the parties do not cite authority
The Court notes, however, that
Yeager, 693 F.3d at 1082.
The Court also notes
United States District Court
For the Northern District of California
10
that the fact that the classic WoW and the expansion packs were
11
released over a period of six years suggests that the different
12
software releases should be deemed separate publications.
13
Tiwari v. NBC Universal, Inc., 2011 WL 5079505, *13 (citing
14
Christoff, 47 Cal. 4th at 486 (Werdegar, J., concurring)
15
(expressing doubt that a “five-year course of printing and
16
distributing labels may be deemed a single publication simply
17
because the labels were not substantially altered during that
18
time”)), order clarified, 2011 WL 5903859 (N.D. Cal.).
See
19
Lewis also argues that the statute of limitations is tolled
20
by Blizzard’s fraudulent concealment in misleading her about the
21
existence of an agreement assigning her rights in the recordings.
22
Opp. at 9.
23
rule triggers the limitations period immediately upon the
24
publication’s initial distribution to the public.
25
Patricia A. Meyer & Associates, APC, 206 Cal. App. 4th 1095, 1121
26
n.8 (citation omitted), reh’g denied (June 26, 2012), review
27
denied (Aug. 29, 2012).
28
“regardless of when the plaintiff secured a copy or became aware
12
Under California law, however, the single publication
See Cole v.
The single publication rule applies
1
of the publication,” and is not, therefore, tolled by the
2
discovery rule.
3
(2003).
4
the doctrine of fraudulent concealment to commercial
5
misappropriation claims.
6
fraudulent concealment by Defendants before the statute of
7
limitations ran.
8
equitable tolling doctrine here.
9
Shively v. Bozanich, 31 Cal. 4th 1230, 1245-46
Lewis cites no authority under California law applying
Moreover, the complaint does not allege
The Court therefore declines to apply that
Under the guidance of Yeager and Christoff, the Court
United States District Court
For the Northern District of California
10
dismisses the state law claims as time-barred and grants Lewis
11
leave to amend the complaint to allege facts that would support a
12
claim of commercial misappropriation in later releases of WoW
13
which republished the game and triggered a new limitations period.
14
To avoid futility of amendment, leave to amend on the issue of
15
timeliness is granted only if the state law claims are amended to
16
assert rights that are not equivalent to rights protected by
17
copyright law, as discussed in section I, above.
18
CONCLUSION
19
For the foregoing reasons, Blizzard’s Motion to Dismiss the
20
Second and Third Claims for Relief is GRANTED WITH LEAVE TO AMEND.
21
(Docket No. 14.)
22
twenty-one days of the date of this order.
23
answer or otherwise respond to the amended complaint twenty-one
24
days thereafter.
25
//
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//
Plaintiff may file an amended complaint within
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Blizzard must file an
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The initial case management conference will be held on
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December 19, 2012.
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management statement by December 12, 2012.
The parties must file a revised joint case
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IT IS SO ORDERED.
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Dated:
10/22/2012
CLAUDIA WILKEN
United States District Judge
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United States District Court
For the Northern District of California
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