Yahoo News - Celebrities, Stooges, and 25th-Century Reporters- Are Video Games Art or Merchandise?
These departures from reality — an outer-space setting, unusual song choices, a female singer with a male voice — seem quintessentially transformative. Not according to the California appellate court, though, which held that Band Hero did nothing more than depict the band members doing exactly what they do as celebrities — performing songs. The upshot was that Activision had no first-amendment right to depict images of the band in Band Hero.

The problem with this holding is that, if a movie, rather than a video game, had depicted the band in the same way, the result probably would've been different. Twenty years ago, the hit coming-of-age movie "The Sandlot" told the story of a motley group of boys who played sandlot baseball. One of the main characters was "Michael Palledorous," nicknamed "Squints." The real Michael Polydorous, a former childhood friend of the writer, wasn't amused. Apparently, Polydorous as a kid had looked and dressed like the movie character. Even though the Squints character had a similar look and almost identical name to the real person, the court threw the lawsuit out of court because the movie was obviously a fictional work of art entitled to first-amendment protection.