Activision v Noriega analysed: don’t make way for the bad guy

Back in July 2014 I wrote a post about whether a dictator (Manuel Noriega of Panama) could control his online image in a video game (the hit game Call of Duty: Black Ops 2)?  We now have an answer: nope.  In a short judgment which is interesting for all kinds of reasons, a Californian court has come down resoundingly on Activision’s side and dismissed Mr Noriega’s claims.  Read on more… Continue reading Activision v Noriega analysed: don’t make way for the bad guy

No Doubt vs Activision Band Hero lawsuit to fight on

A US appeal court has given No Doubt permission to continue their lawsuit against Activision over Band Hero.  The rock band argue that Activision has misused their likenesses and music within Band Hero in a breach of a contract that Activision entered into with them.

This lawsuit has been going since around November 2009 (see previous posts about the No Doubt/Activision lawsuit here and here), so here’s a quick summary of the story so far.

(1) They contracted with Activision for their avatars to appear in Band Hero and sing a maximum of three No Doubt songs only. 
(2) They agreed to be photographed and have motion-capture video taken of them (to make game avatars for each of them) and to assist with marketing the game (e.g. press interviews).  In return, they received an undisclosed payment.
(3) BUT, the band argue, without their permission Activision designed the game so that players can: (i) have No Doubt avatars play over sixty songs from other bands; and (ii) have No Doubt avatard sing other bands’ songs in other bands’/singers’ voices, whether male or female (they give the example of Gwen Stefani singing the ‘Stones song “Honky Tonk Woman” in a man’s voice). This, they argued previously, has “transformed No Doubt band members into a virtual karaoke circus act”.  
(4) Essentially, No Doubt were pretty angry that Activision allegedly told them their likenesses and songs would be used only for a limited purpose, but actually then used them in a much more expansive way than No Doubt would ever have agreed to.  Or so they say.
(1) It did have the contractual rights to allow players to use No Doubt avatars to sing non-No Doubt songs.
(2) In any event, it was “publicly known” that players can unlock in-game characters in Band Hero and then use them to play potentially any song within the game.
(3) Activision also counterclaimed against No Doubt for allegedly failing to provide marketing assistance as it was contractually obliged to do.
Originally, Activision advanced a pretty straightforward contract-based argument: they said they had the rights to do what they did and therefore No Doubt can have no complaint.  But, more recently, it seems that Activision ran a more sophisticated constitutional law argument, relying on the US First Amendment – which among other things protects freedom of expression.
It was essentially this issue which went before the courts just now.  Activision argued that its use of No Doubt’s likenesses in Band Hero is protected by the First Amendment and therefore No Doubt had no case.  No Doubt of course rejected that argument, arguing that Activision could not now claim wide ranging constitutional protections when as a matter of contract it had already agreed with No Doubt only to use the No Doubt likenesses and music under limited condititions. 
At first instance, the trial court rejected Activision’s argument.  Activision then appealed the case to the Californian Court of Appeal.  Now that Court of Appeal has again rejected Activision’s argument and effectively allowed No Doubt to continue the lawsuit against Activision.
The court found against Activision for two main reasons (full ruling HERE):
(1) Activision’s freedom of expression/First Amendment argument failed
In order for Activision to claim a freedom of expression protection, it first had to prove that the ‘expression’ in question deserves to be legally protected.  In this case, the ‘expression’ that Activision wanted to protect is its use of the No Doubt band’s likenesses and music in Band Hero
But think about that for a second.  It’s not enough for Activision to just copy No Doubt’s likenesses and music wholesale, stick it in Band Hero and then claim First Amendment protection.  If that was the case, then anyone could stick anyone else in a game (or a film etc) and then avoid being sued by relying on the First Amendment.  To get around this problem, US case law has established that you have to do something expressive with the work in order to obtain First Amendment protection.  There has to have been a “transformative use” of what you want to protect.  Put simply, you can’t just copy someone else, you have to actually do something new if you want First Amendment protection.
Example: Alan takes a photo of Bob and sells it to someone else = arguably not protected by the First Amendment.  Alan takes a photo of Bob and turns it into a mural painting featuring Bob  = potentially protected by the First Amendment.  Why?  Because turning the photo into the painting is the ‘transformative use’.
[American readers: I think that works, but tell me if I’m wrong!]
So, the court applied that logic to Band Hero.  Was the appearance of No Doubt and everything a player can do with them once they unlocked a ‘transformative use’ of the work?  Answer: NO.  The Court said:
We conclude that the creative elements of the Band Hero videogame do not transform the images of No Doubt’s band members into anything more than literal, fungible reproductions of their likenesses. Therefore, we reject Activision’s contention that No Doubt’s right of publicity claim is barred by the First Amendment.”
In other words, taking a celebrity from the real world and putting them in avatar form within your game isn’t enough to give you First Amendment protection, because you haven’t done enough to their likenesses to have made something new which deserves First Amendment protection.
(2) The contractual argument
One of the three judges, Justice Epstein, also found against Activision but using different reasoning.  He essentially agreed with No Doubt’s argument that Activision had agreed in the contract to a limited use of No Doubt’s likenesses and music so it could now turn around and argue wide-ranging contractual protection.
No Doubt has been given permission to continue its lawsuit and we’ll have to see what it decides to do next.  If it continues, it certainly will have had a substantial boost thanks to the Court of Appeal.  By contrast, Activision has suffered a real setback: its consitutitional law argument failed and, maybe more damagingly, the court did not seem particularly impressed with Activision’s conduct or its views of the contract.
A number of games companies have profited from associating themselves with celebrities, or even including celebrities within the games themselves.  But now the games industry is facing a backlash: EA is facing claims from throngs of sports stars from (American) football to basketball.  Activision is facing claims over its music games – not just No Doubt over Band Hero, but also from Axl Rose over Guitar Hero.  And in the background there are a whole host of other celebrity vs games companies disputes on the boil.    Late last year, for example, a Cypress Hill singer sued Rockstar Games over Grand Theft Auto.
You can argue back and forth how genuine these claims by rich celebrities against rich games companies really are.  But what the No Doubt/Activision lawsuit is showing us so far is this:
  • Games companies can’t just take someone else’s image or intellectual property and do what they want with them.
  • In fact, games companies can’t even just take a real person’s likeness and turn it into a game avatar without permission.
  • As always, a properly drafted licence agreement is key: you need to obtain rights for what you want to do with someone else’s likeness or intellectual property and you need to be absolutely clear what you can and cannot do with them.
  • So far, there is nothing to discourage more cases like this in the future – watch this space…
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Image credit: Wikimedia/Activision

No Doubt vs Activision: a legal analysis

The dispute between No Doubt and Activision over Band Hero (which we’ve blogged about previously) has continued to escalate, with Activision this week filing papers setting out its formal legal position.

Below, I set out a lowdown of what’s going on, what No Doubt and Activision argue against each other and my thoughts about  how the battle is shaping up.  Before we do that, a boring but necessary caveat: this post is of course written from the perspective of an English lawyer (me!) based on a review of the early legal papers and the contract.  It therefore deals with the legal issues in general terms rather than focusing on the finer points of Californian law.

The Lowdown

In November 2009, the rock band No Doubt commenced a lawsuit in California against Activision over the band’s appearance in Activision’s extremely popular Band Hero.  So far, the lawsuit is at an early stage: both sides have (as of this week) now filed their initial legal papers setting out their positions in the dispute and will probably need to file further legal papers against each other in due course.

No Doubt’s case

No Doubt say they contracted with Activision for their avatars to appear in Band Hero and sing a maximum of three No Doubt songs only.  They also say that they agreed to be photographed and have motion-capture video taken of them (to make game avatars for each of them) and to assist with marketing the game (e.g. press interviews).  In return, they received an undisclosed payment.

But the band argue that, without their authorisation, the game actually permits players to: (i) have band avatars play over sixty songs from other bands; and (ii) have No Doubt band members sing other bands’ songs in other bands’/singers’ voices, whether male or female (they give the example of Gwen Stefani singing the ‘Stones song “Honky Tonk Woman” in a man’s voice). This, they argue, has “transformed No Doubt band members into a virtual karaoke circus act”

Lastly, they say that when they found all of this out they asked Activision to ‘lock out’ this unauthorised functionality, but that Activision refused because it would be “too expensive” (Activision deny this allegation and say that No Doubt only made this request after manufacture of the game had already begun).

No Doubt’s legal arguments (the highlights):

  • No Doubt say that Activision knew that Band Hero would do more than their contract permitted, but Activision deliberately concealed this from the band in order to ‘fraudulently induce’ them to agree to have their avatars and songs in the game.
  • No Doubt say that Activision is in breach of contract.  In particular, they say the contract specifically provided that any use of the band’s name or likeness or any representation of the band in the game had to be expressly approved by the band first – but Activision did not obtain this approval.  They also say that they only gave Activision rights to use the whole band’s name and likeness and did give Activision to use band members on their own in the game (e.g. Gwen Stefani or Tony Kanal singing a song on their own).
  • No Doubt also argue under specific Californian laws and the common law right to publicity (in basic terms, the right to control the way your name/image is presented in public).

What do No Doubt want?

  • A Court order that Activision recalls all distributed versions of Band Hero and and an restraining order/injunction stopping Activision from using or encouraging others to use the band’s name of likeness in Band Hero.
  • Substantial financial damages, including a share of Activision’s profits from the game.

Activision’s case

Activision’s case, as set out in its legal papers filed earlier this week, is essentially that it denies that it has any liability to No Doubt.

Activision’s legal arguments (the highlights again):

  • Activision did have the rights under its contract with No Doubt to allow players to use band avatars to sing non-No Doubt songs (although Activision has not at this stage set out its analysis of the contract in detail).
  • Activision says it was “publicly known that certain users of “Guitar Hero” videogames are able to “unlock” in-game characters and then can choose to play songs performed by other artists using “unlocked” characters“.
  • Therefore, for a range of legal reasons (including consent, estoppel and waiver if you are particularly interested), Activision says that No Doubt cannot legally complain that Band Hero permits players to use band avatars to sing songs which No Doubt didn’t write or approve.
  • Activision counterclaims that No Doubt is itself in breach of contract for failing to provide the marketing services in support of the game which it promised to provide (possibly they stopped cooperating with Activision when they took legal issue with Band Hero itself?)

What does Activision claim?

Activision demands the repayment of (an undisclosed sum of) money given to No Doubt for carrying out marketing services in support of Band Hero which it promised – but failed – to carry out.  (If you’re interested, Activision’s claim is stated to be based on the legal doctrine of ‘unjust enrichment’. In simple terms: you have money that belongs to me and you have no right to it, therefore I want it back.)

How is the battle shaping up?

At this early stage in the litigation, based on the legal papers it seems to me that there are arguable legal issues both ways.  Based on their stated legal case and the contract, No Doubt appear to have an argument that the contract does not give Activision any rights regarding individual band members appearing in Band Hero and further that any appearance of the band in the game had to be approved by the band first – which they say Activision failed to obtain. 

On the other hand, Activision argues that the band already knew how they would appear in the game even before (or at least at the same time as) they entered into the contract – and they had plenty of time to say something if they were unhappy.  They also seem to argue (albeit without much legal detail as yet) that No Doubt have not suffered financial loss and if they did it was not caused by Activision.

No Doubt’s reply to that argument is that in fact the band knew nothing of the sort and that (i) the contract doesn’t say that either; and (ii) Activision deliberately misled them by failing to tell them what plans it had for the band’s and band members’ appearances in the game.  This second point will depend on factual rather than legal argument: No Doubt would need to demonstrate that some actual person from Activision deliberately misled them.  Whether or not that is true and can be proven remains to be seen.

One quite interesting issue, which will need to be explored in the litigation, is the question of loss.  Can No Doubt prove that their unauthorised appearance in Band Hero has really caused them financial loss?  Is it really the case that having your avatars sing songs which are not yours could cause you to lose reputation, business and goodwill?

Of course, all of the above is subject to one critically important caveat – nothing is ever certain in litigation.  You simply cannot predict all of the twists and turns that a lawsuit (espeically one as high-profile as this) can take during its course – and those who do try may end up looking a little foolish by the end (wise words there from your uncle GamerLaw).  We shall have to see what No Doubt, Activision and the learned judge have in store for us…

No Doubt, No Claim?

A quick look at several sites which have carried this story (and the comments threads on them) suggest perhaps a certain amount of scepticism as to why No Doubt have brought this claim – are they really that bothered that their avatars in a videogame can be made to sing non-No Doubt songs, or is this just a claim to grab money from Activision and its highly successful game?  I don’t know, is the honest answer.  But, it does seem to me based on the legal documents so far that No Doubt does have some at least arguable legal points.  As we said, whether or not they have enough to convince a judge and jury at trial remains to be seen.

What is at stake?

Quite a lot, potentially.  If No Doubt were to win at trial, it may be able to claim substantial financial damages including a share of Activision’s profits on Band Hero – which are probably pretty significant I imagine.  More importantly, No Doubt just may be able to secure a Court order for the recall of the game or at least a freeze on further sales – which could be seismic.  This however would be a pretty draconian measure and (if a US judge is anything like an English judge) he/she may well require a lot of convincing that it is necessary.

If Activision wins, however, then it may be able to claim the repayment of at least part of the fee paid to No Doubt.  It will also have won an important symbolic victory against any other artists who may be watching this case closely and considering what legal options they may have themselves.

The case also raises questions about the extent to which artists can control representations of themselves in games – a question which is likely to become increasingly important in the future.

What happens next?

That depends upon the choices which Activision and No Doubt make, as well as on Californian litigation procedure.  In general terms, there may be a further round of legal submissions, quite possibly followed by initial legal skirmishes in court, leading to mutual disclosure of documents, exchange of witness statements and – eventually – a trial before a judge and jury in Los Angeles.  At that point, who knows what might happen…

Or, it could settle early – which would avoid the embarassment and risk of a high-profile trial, but could prove expensive to one or the other of them (though possibly still cheaper than fighting all the way to the court).

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

Image sources:
(i) Wikipedia –  – Gwen Stefani (originally posted by Flickr by compulsiveprep_8)
(ii) Wikipedia – – Activision logo
(iii) Wikipedia – – The North American boxart for Band Hero