Filed 10/31/12 Washington v. Take-Two Interactive Software CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN MICHAEL S. WASHINGTON, B232929 Plaintiff and Appellant, (Los Angeles County Super. Ct. No. BC450602) v. TAKE-TWO INTERACTIVE SOFTWARE, INC. et al., Defendants and Respondents. APPEAL from a judgment of the Superior Court of Los Angeles County. Michael M. Johnson, Judge. Affirmed. The Law Office of Jeff Grotke and Jeff Grotke for Plaintiff and Appellant. Mitchell Silberberg & Knupp, David A. Steinberg and Paul Guelpa for Defendants and Respondents. ___________________________________ INTRODUCTION Appellant Michael Washington filed a complaint alleging that respondents Rockstar Games and Take-Two Interactive Software misappropriated his likeness in creating the main character of a popular video game. Respondents filed a motion to strike the complaint under Code of Civil Procedure section 425.16. The trial court granted the motion to strike, concluding that Washington‟s claims arose from protected activity and that he had failed to establish a probability of defeating defendant‟s First Amendment-based “transformative use” defense. The court entered a judgment dismissing the case with prejudice and awarding respondents attorneys‟ fees and costs. Washington appeals, arguing that he established a probability of prevailing on his misappropriation claims. We affirm. FACTUAL AND PROCEDURAL BACKGROUND A. Summary of Grand Theft Auto: San Andreas1 In 2004, Rockstar Games and Take-Two Interactive Software (respondents) released “Grand Theft Auto: San Andreas” (GTA: San Andreas), which is a video game that “allows a player to experience a version of West Coast „gangster‟ culture.” (E.S.S. Entertainment 200, Inc. v. Rockstar Videos, Inc. (9th Cir. 2008) 547 F.3d 1095, 1097 (E.S.S.) [reviewing trademark claim involving GTA: San Andreas].) The game is essentially an animated, interactive movie in which the player controls the main character, “Carl Johnson,” who is referred to as “CJ.” The plot of the game is summarized on the game box: “Five years ago Carl Johnson escaped from the pressures of life in Los Santos, San Andreas, a city tearing itself apart with gang trouble, drugs and corruption. Where filmstars and millionaires do their best to avoid the dealers and gangbangers. Now, it‟s the early 90s. Carl‟s got to go home. His mother has been 1 This factual summary is based on materials that the respondents submitted to the trial court, which included a copy of the video game, the game packaging and numerous articles that discuss and critique the game. In his appellate brief, Washington has not objected to the admission of any of those materials. 2 murdered, his family has fallen apart and his childhood friends are all heading towards disaster. On his return to the neighborhood, a couple of corrupt cops frame him for homicide. CJ is forced on a journey that takes him across the entire state of San Andreas, to save his family and to take control of the streets.” The player utilizes the game controls to navigate CJ through different missions that take “place in the virtual cities of „Los Santos,‟ „San Fierro,‟ and „Las Venturas,‟ based on Los Angeles, San Francisco, and Las Vegas, respectively.” (E.S.S., supra, 547 F.3d at p. 1097.) The game comes with a “City Guide” that provides information about specific neighborhoods within each city, including food and retail options, sports clubs, night life, and popular areas of interest. The “plot advances with each mission accomplished until the player, having passed through thousands of cartoon-style places along the way, wins the game.” (Ibid.) Over the course of these missions, CJ interacts with a wide-array of fictional characters, including police officers, drug dealers, gang members and members of his family. CJ‟s physical appearance changes throughout the game, depending on the type and quantity of food he eats and the amount he exercises. Players can also alter CJ‟s clothes and his accessories. GTA: San Andreas, which was highly profitable, has been the subject of numerous articles and scholarly works. Some commentators have praised the game for its willingness to confront complex social issues such as police corruption, race relations, drug dealing, gang culture, poverty, and obesity. Others have criticized the game for incorporating stereotypes and glorifying criminal behavior. B. Washington’s Complaint In December of 2010, appellant Michael Washington, who describes himself as a “a professional model and a back-up singer . in the . rap group „Cypress Hill,‟” filed a complaint alleging that respondents misappropriated his likeness and identity for the character “CJ.” According to the allegations in the complaint, Washington was invited to meet with a group of game developers to discuss his participation in a video game “that 3 would use elements of street life.” The game developers “had been told by a mutual acquaintance, „Stevo‟, that [Washington] had an authentic background in street life, having been involved with street gangs since he was a teenager.” During the meeting, which occurred in 2003, Washington spent one or two hours discussing details of his “gang and street life.” Washington was told he would be notified if he was selected for the video game. At some point after the meeting, a third party allegedly gave the respondents photos of Washington that had appeared in a magazine. Approximately seven years after this meeting, Washington “learned from his young nephew that many people suspected that he was „CJ,‟ the lead character in the game [GTA: San Andreas].” After receiving this information, Washington “recalled the meeting in or about 2003, and it began to dawn on him that his image had been stolen for the game. Upon learning about the game and the details of it, [Washington concluded] his image, and many of the ideas he related at the video game meeting, ha[d] been misappropriated. Upon examination of images of „CJ‟ . and comparison to his photos from that year . , it became clear that [respondents] had stolen his image and never paid him.” Washington‟s complaint included five causes of action predicated on respondents‟ misappropriation of his “likeness,” “image,” “ideas” and/or “life story.” The first cause of action for “Fraud and/or Fraudulent Concealment” alleged that respondents “engaged in a pattern and practice of defrauding [Washington] in that [respondents] failed to notify [him] that they had chosen to use his ideas and image, denied that he had been or would be used . [and] continue to fail to properly credit payments due to [him] in terms of royalties and payments for profits earned.” The second cause of action for “Appropriation of Likeness” alleged that respondents “used [his] likeness, or identity without his knowledge or permission, in the game [GTA: San Andreas].” The third cause of action for “Unjust Enrichment” alleged that it would be “inequitable” to allow respondents to retain profits from GTA: San Andreas because they had “misappropriated, and/or stolen” Washington‟s “ideas and life story.” The fourth and fifth claims, which 4 are captioned “Request for Accounting” and “Injunctive Relief,” requested specific remedies for respondents‟ alleged “use of [Washington‟s] image, story and ideas.” C. Trial Court Proceedings 1. Respondents’ motion to strike under Code of Civil Procedure section 425.16 a. Respondents’ motion to strike and supporting evidence On March 21, 2011, respondents filed a motion to strike Washington‟s complaint pursuant to Code of Civil Procedure section 425.16.2 Respondents argued that all of Washington‟s claims arose from the production of a video game, which qualified as conduct “„in furtherance of the exercise of [their] right . of their free speech in connection with a public issue or an issue of public interest.‟” To demonstrate that GTA: San Andreas involved matters of public interest, respondents submitted a copy of the game along with numerous articles discussing the social issues that CJ encounters as he moves from mission to mission. Respondents also argued that Washington could not establish a probability of prevailing on his appropriation claims because CJ was not “readily identifiable” as Washington. Alternatively, respondents contended that even if there was question of fact regarding whether they misappropriated Washington‟s likeness, their use of his image fell within the “transformative use” doctrine and was therefore protected under the First Amendment. In support of their motion, respondents requested that the court take judicial notice of the game booklet, which listed Washington as one of approximately one hundred “models” that had been used during the production of the game. Respondents also submitted a declaration from an employee who stated that she had reviewed a production binder for GTA: San Andreas that contained documents related to a Los Angeles photo shoot. One of these documents was an invoice from a modeling agency that included a 2 Unless otherwise noted, all further statutory references are to the Code of Civil Procedure. 5 line item for providing a “gangster” named “Mike „Shag‟ Washington.” The binder also contained a confidentiality agreement that Washington and Rockstar Games signed on September 16, 2003. The employee also stated that she had reviewed a computer file for GTA: San Andreas entitled “SA character shoot LA.” The “character shoot” file contained numerous subfiles named after different types of characters that appear in GTA: San Andreas, including, for example, “preppy,” “venice-skaters,” “elderly people, “girls” and “black men.” The subfile named “black men” contained several photographs of Washington.