The majority opinion in this case affirms the decision of the trial court, which denied Activision’s special motion to strike under Code of Civil Procedure section 425.16 (the anti-SLAPP (strategic lawsuit against public participation) law). I agree with that result, and concur in the judgment. In its analysis, the majority decides, first, that appellant’s claims arose from First Amendment-protected activity, and hence satisfy the first prong of the test for motions under the anti-SLAPP statute. I agree with the majority’s reasoning and conclusion on that issue. (See Navellier v. Sletten (2002) 29 Cal.4th 82, 88 [124 Cal.Rptr.2d 530, 52 P.3d 703].)
The majority then discusses the second prong of the test: whether No Doubt made a prima facie showing of probability that it would prevail on the merits of its lawsuit. It does so on a First Amendment basis, finding that the challenge to Activision Publishing, Inc.’s use of No Doubt characters and likenesses in its video game does not satisfy the “transformative use” doctrine of Comedy III Productions, Inc. v. Gary Saderup, Inc. (2001) 25 Cal.4th 387, *1041391 [106 Cal.Rptr.2d 126, 21 P.3d 797] (Comedy III). Because of that conclusion, it does not reach No Doubt’s claim that Activision had no such right in light of its contract with No Doubt. (Maj. opn., ante, at pp. 1035-1036, fn. 7.)
I would decide the case the other way around: I would conclude that, under the facts of this case, the contract between the parties precludes Activision’s First Amendment claim, making it unnecessary to reach the “transformative use” issue. (See Teachers’ Retirement Bd. v. Genest (2007) 154 Cal.App.4th 1012, 1043 [65 Cal.Rptr.3d 326] [a fundamental principle of constitutional adjudication is that court will not decide constitutional questions unless absolutely required to do so in order to dispose of matter before it], and authority cited.) That said, I do not dispute the majority’s reasoning on that issue.
The majority opinion fairly and accurately sets out the factual and procedural history of the case, as well as the principal authorities for reviewing trial court decisions under the anti-SLAPP law. There is no need to reprise that discussion here.
What is central in this case (and not involved in Comedy III and other cases cited) is that Activision’s entire right to formulate avatars taken from No Doubt performers is based on its license agreement with No Doubt. In that document (written on Activision letterhead) No Doubt licensed the use by Activision of “certain rights” as to the No Doubt name, likenesses, logos and associated trademarks, and related intellectual property (the “Licensed Property”) in a Band Hero video game. No Doubt (styled “Artist” in the agreement) agreed to participate in a performance session which Activision could photograph and scan for the creation of avatars based on the No Doubt characters and performance. The agreement subordinated Activision’s right to use avatars based on No Doubt “Licensed Property” upon approval by No Doubt “over the songs to be used,” which approval was not to be unreasonably withheld. The “Approval Rights” section of the contract reserved to No Doubt (with exceptions not germane here) the right of prior approval of any use of the character likenesses (and set out a system for obtaining such approval, including a provision that a failure by No Doubt to approve or disapprove after specified notification may be deemed approval), and of “the songs to be used,” which approval was not to be “unreasonably withheld.”
In sum, this was a commercial agreement that granted a limited license to Activision for use of No Doubt’s character likenesses in songs, all subject to No Doubt’s prior approval. Activision’s exploitation of the intellectual property was subject to the terms of the agreement. Having agreed to its terms, Activision cannot be heard to claim that its use of the property in ways expressly prohibited by the agreement is protected by the First Amendment.
*1042Activision was not acting as a lampooner or commentator, nor in any context other than as a licensee of No Doubt’s intellectual property. It proceeded to include in its Band Hero game No Doubt intellectual property, avatars, and sound depictions in a manner which No Doubt did not approve, had no opportunity to approve, and would not have approved. Since its rights to use this property in a video game were governed by the license agreement, Activision is precluded from relying on the “transformative use” doctrine to defend this breach of the agreement. Stated another way, the license agreement is antithetical to a First Amendment claim that Activision had a right to exploit No Doubt’s intellectual property in breach of the license agreement.
I would affirm the trial court’s ruling on this basis.
Appellant’s petition for review by the Supreme Court was denied June 8, 2011, S191787.