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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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 AMANDA LEWIS, 5 Plaintiff, 6 7 8 9 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 10 11 Plaintiff Amanda Lewis filed this action against Defendants 12 Activision Blizzard, Inc. and Blizzard Entertainment, Inc. 13 (collectively, Blizzard) alleging claims under federal copyright 14 law and state law. 15 Lewis’s state law claims for commercial misappropriation of voice 16 pursuant to section 3344 of the California Civil Code and for 17 quantum meruit. 18 the papers. Blizzard filed the instant motion to dismiss Lewis opposes the motion, which is submitted on 19 BACKGROUND 20 Lewis worked for Blizzard as a “Game Master” for World of 21 Warcraft (WoW), a multiplayer online role-playing game developed 22 and owned by Blizzard. 23 in a customer-service position responsible for in-game issues such 24 as abusive language or players becoming unable to move in the 25 game. 26 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. 28 Blizzard recorded Lewis’s voice and an original song that she Compl. ¶ 17. 1 allegedly developed, and applied her vocal work to WoW creatures 2 called baby murlocs, which are virtual pets. 3 Lewis alleges that, since at least November 2005, baby murloc pets 4 employing her voice and derivatives thereof have been awarded to 5 attendees of BlizzCon and other WoW-related events such as arena 6 tournaments. 7 baby murlocs through its online store. 8 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, 10 United States District Court For the Northern District of California 9 which she alleges have been incorporated into WoW without her 11 permission. 12 that she was not employed by Blizzard to produce creative content, 13 did not receive additional compensation for her creative work, and 14 did not assign any rights in copyright to Blizzard. 15 Compl. ¶ 21; Defs’ RJN Exs. 1, 2.1 Lewis alleges Compl. ¶ 21. Lewis filed this action against Blizzard on March 5, 2012, 16 alleging the following claims for relief: copyright infringement 17 pursuant to 17 U.S.C. § 501, unauthorized use of voice in 18 violation of California Civil Code section 3344, and quantum 19 meruit. 20 dismiss pursuant to Rule 12(b)(6), seeking dismissal of the claims 21 under state law. 22 23 24 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. 25 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. 5 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. 9 896, 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. 17 Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 18 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 28 3 1 a Rule 12(b)(6) motion. 2 1265, 1267 (9th Cir. 1987). 3 4 Durning v. First Boston Corp., 815 F.2d DISCUSSION I. 5 Preemption Blizzard contends that Lewis’s claims for commercial misuse 6 of her voice (or right to publicity) and quantum meruit are 7 preempted by the Copyright Act, 17 U.S.C. § 301. 8 must be satisfied to apply the preemption provision of the 9 Copyright Act to state law claims: (1) “‘the content of the Two conditions United States District Court For the Northern District of California 10 protected right must fall within the subject matter of copyright 11 as described in 17 U.S.C. §§ 102 and 103’” and (2) “‘the right 12 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 15 Cir. 2008) (quoting Downing & Abercrombie & Fitch, 265 F.3d 994, 16 1003 (9th Cir. 2001)). 17 Lewis does not dispute that the recordings at issue fall 18 within the subject matter of copyright and satisfy the first prong 19 of the preemption test. 20 preemption test, Lewis’s claims, as currently plead, assert rights 21 equivalent to those protected within the general scope of 22 copyright and are therefore preempted. Opp. at 5. As to the second prong of the 23 The “equivalent rights” prong of the test requires a court to 24 consider whether the state claim asserts rights within the general 25 scope of copyright as specified by section 106 of the Copyright 26 Act. 27 28 Section 106 provides a copyright owner with the exclusive rights of reproduction, preparation of derivative works, distribution, and display. To 4 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 4 Laws, 448 F.3d 1134, 1143 (9th Cir. 2006) (quoting Del Madera 5 Props. v. Rhodes & Gardner, 820 F.2d 973 (9th Cir. 1987)). 6 In Laws, the court held that the Copyright Act preempted a 7 claim under the commercial misappropriation statute, Cal. Civil 8 Code § 3344, based on an allegedly unauthorized publication of a 9 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 11 Have,” performed by Jennifer Lopez in 2002 and produced by Sony 12 Music Entertainment, Inc. 13 privacy and for misappropriation under section 3344 against Sony, 14 which argued that the claims were preempted by the Copyright Act. 15 The court noted that the Copyright Act extends protection to 16 “original works or authorship fixed in any tangible medium of 17 expression from which they can be reproduced,” and that a work is 18 “fixed” in a tangible medium “when its embodiment in a copy or 19 phono record, by or under the authority of the author, is 20 sufficiently permanent or stable to permit it to be perceived, 21 reproduced, or otherwise communicated for a period of more than 22 transitory duration.” 23 § 101). 24 Laws brought claims for invasion of Laws, 448 F.3d at 1139 (quoting 17 U.S.C. Distinguishing Ninth Circuit decisions holding that claims 25 concerning imitation of a voice were not preempted, the court in 26 Laws noted that Sony did not imitate the plaintiff’s voice or 27 singing style but used the recording of her vocal performance. 28 Id. at 1140-41. In Waits v. Frito-Lay, Inc., 978 F.2d 1093, 1100 5 1 (9th Cir. 1992), by contrast, the court held that the right of 2 publicity claim was not preempted because the defendants imitated 3 the artist’s voice rather than using a “copyrightable subject such 4 as a sound recording or musical composition.” 5 Midler v. Ford Motor Co., 849 F.2d 460, 462 (9th Cir. 1988), the 6 court held that copyright law did not preempt Bette Midler’s 7 misappropriation claim for imitating her voice for advertising 8 purposes because a “voice is not copyrightable.” 9 claims for voice misappropriation in Waits and Midler, the Similarly, in Unlike the United States District Court For the Northern District of California 10 plaintiff in Laws asserted a misappropriation claim based on 11 Sony’s unauthorized use of a sound recording of her vocal 12 performance, which was therefore preempted by copyright law. 13 Laws, 448 F.3d at 1140-41. 14 plaintiff’s argument that her right to publicity claim was not 15 preempted because she alleged unauthorized duplication of her 16 vocal performance, and held that copyright law preempted a voice 17 misappropriation claim “when the entirety of the allegedly 18 misappropriated vocal performance is contained within a 19 copyrighted medium.” 20 “Sony did not use Laws’s image, name, or the voice recording in 21 any promotional materials. 22 control of the artistic work itself and could hardly be more 23 closely related to the subject matter of the Copyright Act.” 24 at 1142. The court in Laws rejected the Id. at 1141. The court in Laws reasoned, Her state tort action challenges Id. 25 Like Laws’s, Lewis’s claim for commercial misuse of her 26 voice, pursuant to Civil Code section 3344, is based entirely on 27 the alleged use of recordings of her voice or vocal performance. 28 Section 3344 protects the right of publicity against “[a]ny person 6 who knowingly uses another’s name, voice, signature, photograph, 2 or likeness . . . on or in products, merchandise, or goods, or for 3 purposes of advertising or selling, . . . without such person's 4 prior consent.” 5 allege that Blizzard used or imitated any aspect of her voice that 6 was not contained in the recordings. 7 has and continues to use, leverage and profit from Ms. Lewis’ 8 Copyrighted Works without permission.”). 9 Laws, “[a]lthough California law recognizes an assertable interest 10 United States District Court For the Northern District of California 1 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 13 misappropriated vocal performance is contained within a 14 copyrighted medium.” 15 Video, Inc. v. 144942 Canada Inc., 617 F.3d 1146, 1153 (9th Cir. 16 2010) (concluding that right of publicity claim was preempted and 17 remanding for entry of judgment for the plaintiff on copyright 18 claim, which was affirmed on subsequent appeal, 468 Fed. Appx. 676 19 (9th Cir.), cert. denied, 81 U.S.L.W. 3030 (Oct. 1, 2012)); No 20 Doubt v. Activision Publishing, Inc., 702 F. Supp. 2d 1139, 1145 21 (C.D. Cal. 2010) (holding that name, physical likeness and persona 22 are not copyrightable, but noting that “if Plaintiff were suing on 23 the basis of Defendant’s misuse of Plaintiff’s songs or videotaped 24 musical performance, its claims would be preempted by the 25 Copyright Act.”). 26 voice recordings, federal copyright law preempts her claim for 27 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 28 7 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. 4 defendants to record her voice, she did not give authorization to 5 use her voice and creative content and variations thereof for 6 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)). 13 registration of her baby murloc vocal expressions and baby murloc 14 song, recorded when she was employed by Blizzard. 15 Thus, her quantum meruit claim seeking “compensation for the use 16 and benefit defendants have obtained from the uncompensated use of 17 her voice and creative content” contained in these recordings 18 asserts rights that are equivalent to Lewis’s rights under 19 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 22 tangible medium of expression, i.e., the recordings, but argues 23 that her state law claims should proceed in the alternative in the 24 event that Blizzard prevails against her copyright claim. 25 6. 26 falling within the scope of the federal Copyright Act are subject 27 to preemption. 28 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 5 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 9 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. 15 II. 16 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. 22 23 24 25 26 27 28 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 17 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 // 26 // Plaintiff may file an amended complaint within 27 28 13 Blizzard must file an 1 The initial case management conference will be held on 2 December 19, 2012. 3 management statement by December 12, 2012. The parties must file a revised joint case 4 5 IT IS SO ORDERED. 6 7 8 Dated: 10/22/2012 CLAUDIA WILKEN United States District Judge 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14

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