Remember “Lady Miss Kier” (real name Kierin Kirby), lead singer of the band “Deee-Lite”? Deee-Lite had a big hit in 1990 with the video for their song Groove is in the Heart, which the California Court of Appeal today helpfully described as follows: “The song’s music video, which received extensive airplay on MTV, features band members clad in ‘funky retro outfits, vivid graphics, groovy dance moves, a futuristic setting and an overall party feel.'” Kierin Kirby v. Sega of America, Inc. (2nd Dist., Div. 8, Sep. 25, 2006) No. B183820 (unpublished).

In July 2000, a representative of Sega Japan contacted Kirby and told her that Sega “was considering using one of several music videos or songs, including Groove is in the Heart, to promote” a video game called “Space Channel 5” or “SC5” in England and possibly Europe. Kirby was not interested and declined to cut a deal or give Sega permission to use her songs, likeness, or anything else.

Subsequently, Kirby discovered that Sega had released the game and that it included a dancing female character named “Ulala” who Kirby felt resembled her Lady Miss Kier character in several respects. Among other “signature” characteristics, Lady Miss Kier was known for saying “ooh la la,” as she does while introducing herself in the Groove is in the Heart video. Kirby thought Sega’s use of “Ulala” was an obvious rip-off of her signature “ooh la la,” and noted several other apparent similarities between Ulala and Lady Miss Kier.

Kirby filed this lawsuit against Sega in Los Angeles in April 2003, asserting several causes of action, including one for misappropriation of likeness under Cal. Civil Code section 3344.
Unfortunately for Kirby, Sega was able to show that the game SC5, including the Ulala character, had been created and released in Japan between 1997 and 1999 (years before Sega contacted Kirby), and that the Japanese creators of Ulala — who created her name, look and dance moves — had never even heard of Deee-Lite, Lady Miss Kier, or Groove is in the Heart at the time they created Ulala.

Worse for Kirby, under the First Amendment and the California Constitution’s right of free expression, “[n]othwithstanding certain similarities, Ulala is more than a mere likeness or literal depiction of Kirby. Ulala contains sufficient expressive content to constitute a ‘transformative work’ under the test articulated by the [California] Supreme Court” in Winter v. DC Comics (2003) 30 Cal.4th 881 and Comedy III Productions, Inc. v. Gary Saderup, Inc. (2001) 25 Cal.4th 387. The trial court granted summary judgment to defendants.

Still worse for Kirby, Civil Code section 3344, under which she sued (in part), states that “The prevailing party in any action under this section shall be entitled to attorney’s fees and costs.” Cal. Civ. Code Sec. 3344(a). Defendants requested these “mandatory” fees in the amount of $763,000, which the trial court reduced to an award of approximately $608,000. The Court of Appeal affirmed. Recognizing that this is a harsh result, the Court noted that the Legislature had unambiguously made the fee provision mandatory. “Whether the course is sound is not for us to say. (Citation) This is the course the Legislature has chosen and, until that body changes course, we must enforce the rule. The fee award was proper.”

And worst of all, the Court of Appeal determined that Civil Code section 3344(a) also entitles the prevailing party to attorney’s fees and costs on appeal, and remanded the case to the trial court to determine the amount of additional fees and costs to be awarded against Kirby for appealling the decision.

I’ll bet Ms. Kirby (and other celebrities) will think twice before suing for “misappropriation of likeness” in California again anytime soon.

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