In Kirby v. Sega of America (2006) 144 Cal.App.4th 47, Kieren Kirby, the lead singer of the band "Deee-Lite," filed an appropriation claim against a video game producer alleging that a computer-generated character named "Ulala" was based on her likeness. Ulala appeared in the video game "Space Channel 5" (SC5), which is "set in outer space in the 25th Century." (Id. at p. 52.) In the game, Ulala is a "young . . . female reporter" who "is dispatched to investigate an invasion of Earth by dance-loving aliens who shoot earthlings with ray guns, causing them to dance uncontrollably. During her investigation, Ulala encounters the aliens and competitor reporters. The player attempts to have Ulala match the dance moves of the other characters. If successful, the player acquires points, eliminates certain characters, and causes others to become part of Ulala's dance troupe. The player moves to higher levels of more difficult play until he or she reaches a final level and a surprise ending to Ulala's story." (IbId.) Kirby alleged that Ulala shared many of her physical attributes and borrowed elements of her "distinctive style," including her "signature" costumes and "lyrical expressions." (Kirby, supra, 144 Cal.App.4th at p. 51.) The video game producer filed a motion for summary judgment arguing that there was no triable issue of fact as to whether Ulala was based on Kirby's likeness. Alternatively, the defendant argued that "the First Amendment provided a complete defense to the entire action." (Id. at p. 53.) The trial court granted the motion based on the transformative use defense. On appeal, the court considered two issues: (1) whether a material issue of fact existed as to whether the defendant appropriated Kirby's likeness or identity, and (2) if so, whether the transformative use defense applied. On the first issue, the court concluded that although Kirby and Ulala differed in "significant respects," "Ulala's facial features, her clothing, hair color and style, and use of certain catch phrases were sufficiently reminiscent enough of Kirby's features and personal style to suggest imitation." (Kirby, supra, 144 Cal.App.4th at p. 56.) The court therefore agreed with the trial court's determination that "a material factual issue existed as to whether respondents misappropriated Kirby's likeness." (IbId.) The appellate court further concluded, however, that even if the defendants had appropriated Kirby's likeness, their use of her image was protected under the transformative use doctrine: "Notwithstanding 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 Supreme Court. First, Ulala is not a literal depiction of Kirby. As discussed above, the two share similarities. However, they also differ quite a bit: Ulala's extremely tall, slender computer-generated physique is dissimilar from Kirby's. . . . Ulala's typical hairstyle and primary costume differ from those worn by Kirby who varied her costumes and outfits, and wore her hair in several styles. Moreover, the setting for the game that features Ulala -- as a space-age reporter in the 25th century -- is unlike any public depiction of Kirby. Finally, we agree with the trial court that the dance moves performed by Ulala -- typically short, quick movements of the arms, legs and head -- are unlike Kirby's movements in any of her music videos. Taken together, these differences demonstrate Ulala is 'transformative,' and respondents added creative elements to create a new expression." (Kirby, supra, 144 Cal.App.4th at p. 59.)