Celebrities, attack!

Activision releases Band Hero and, very soon after, the rock band No Doubt sue Activision for unauthorised use of the band in the game amounting allegedly to the band being turned into a “virtual karaoke circus act“.  Before that, Courtney Love kicks up a stink about the use of Kurt Cobain in Guitar Hero 5.  This, ladies and gentlemen, is what happens when celebrities go bad

First up, what is No Doubt’s beef?  According to a LA Times article (courtesy of Game Politics), No Doubt had an agreement with Activision pursuant to which the band would feature in Band Hero singing their own songs.  However, Activision allegedly went far beyond that and the game allows other artists to play No Doubt songs and for No Doubt avatars to sing other artists’ songs.  Cue shock, anger, disgust from No Doubt + 1 lawsuit alleging breach of contract and No Doubt’s right to publicity. 

Activision’s response: they said, reasonably enough, that they had negotiated a detailed agreement with No Doubt regarding the use of the band in the game and that they believed that they were within their contractual rights.  Which basically means that the dispute seems likely to boil down to a matter of interpretation of the contract: either Activision is right or No Doubt is.

Courtney Love gets angry…again

Move on to example # 2 – Courtney Love jumping on the Angry Train re the appearance of Kurt Cobain as an avatar in Guitar Hero 5.  As with Band Hero, the Cobain avatar can be used to play Nirvana songs as well as songs from other artists.  Love (and, to a lesser extent, Nirvana bandmembers) argued that Activision should not have used Cobain’s image at all and threatened a lawsuit to block its use in the game. 

Activision’s response, again, was that it had entered into a detailed agreement with Cobain’s estate for the use of a Cobain avatar in the game.  So, once again, it comes down to a matter of contractual interpretation.

Thoughts

Both disputes would of course have to be decided ultimately by applicable US contract and IP law. That said, a few immediate thoughts are:

(i) In both cases, money seems the prime motivation.  But could No Doubt and the Cobain estate really show they have suffered substantial loss? (Certainly from a UK perspective anyway.)  Has it really hurt their image/materially infringed their rights for other avatars to sing their songs or vice versa?  Of course, it may not just be about financial loss – an equally effective remedy would be to obtain a Court order pulling the game altogether (which would no doubt bring Activision running to the settlement table).

(ii) This really does show, again, the importance of making sure your contracts are as clear as they can be and – crucially – that both parties have the same understanding as to what they are both giving and receiving.  Of course, it’s always possible that No Doubt/Courtney Love know exactly what rights they gave to Activision but are having a go anyway in order to extract a quick cash settlement – but that always runs the risk of Activision’s lawyers advising it to fight them all the way…
(iii) Have No Doubt/the Cobain estate really thought about PR?  It’s all very well standing on your legal rights, but part of our standard advice to clients before they push the litigation button is always that they should think very carefully about the implications that litigation could have on their standing with their customers and in the market more generally.  On the other hand, if Activision are in the wrong here then maybe they should have expected that at least one artist, at some point, was going to raise these issues.  That might well be something for all publishers to think on, what with the current trend towards introducing celebities into games…

As always, we’ll be keeping an eye on this one…

[image source: Wikipedia]

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