On November 4, 2009, the Grammy award winning rock band No Doubt filed a lawsuit against Activision Publishing, the makers of the hugely successful video game Guitar Hero. No Doubt's lawsuit arises out of the Band Hero video game, which allows players to conduct virtual concert performances using the likenesses of famous musicians such as Kurt Cobain and the members of No Doubt. No Doubt's lawsuit colorfully calls these performances "virtual karaoke circus act[s]."
No Doubt admittedly granted Activision a license to use the names and likenesses of its members in the Band Hero game and on certain advertising. No Doubt claims, however, that it was never told that the virtual likenesses of its members, so called "avatars," could be manipulated by gamers so that they perform songs by other artists and sing in voices other than their own.
No Doubt's lawsuit specifically complains about the fact that the Gwen Stefani avatar can be made to perform the Rolling Stone's hit "Honky Tonk Woman" in a male voice. No Doubt apparently means no offense to Mick Jagger and Keith Richards -- the complaint specifically states that No Doubt are avid fans of the Rolling Stones -- they just don't like having their images manipulated in a way they did not approve. The lawsuit cites as a second problematic example the fact that the avatar of No Doubt bassist Tony Kanal can be made to sing lead vocals on No Doubt songs in a female voice.
No Doubt are not the first rockers to complain about Activision's manipulation of rock star avatars. In September, Courtney Love and Kurt Cobain's former Nirvana band mates Dave Grohl and Krist Novoselic strongly objected to the fact that Cobain's avatar could be used to play songs from other artists on Guitar Hero 5, although no lawsuit was filed (at least not that this writer is aware of).
California's right of publicity law, and similar laws in other states, protect celebrities from the unauthorized commercial exploitation of their names and likenesses. As a general proposition, celebrity images cannot be used to advertise or sell products without the celebrity's consent. For example, in one famous case Vanna White sued Samsung based on an ad featuring a robot wearing a long gown and blonde wig, standing in front of what appeared to be the Wheel of Fortune set turning letters.
If Activision created No Doubt avatars without the band's consent, such conduct would be a clear violation of the members' publicity rights. Everyone agrees, however, that Activision had the right to create the No Doubt avatars pursuant to an agreement with the band. In fact, according to the complaint, the band approved the look of the avatars and even appeared for motion capture filming so that Activision could "simulate a lifelike performance" of No Doubt's songs.
The question to be decided in the lawsuit is whether the license granted by No Doubt allows Activision to do what it did. Ultimately, this will be a question of contract interpretation.
No Doubt's lawyers appear to have some concern that a judge or jury may find that the language of the contract allows Activision to do what it did because the complaint includes causes of action for fraudulent inducement and rescission, in addition to a claim for breach of contract. No Doubt's claims for fraudulent inducement and rescission in essence say that No Doubt was misled into signing the contract and that if the members had known that Activision had intended to manipulate their avatars, they would never have signed the contract.
Claims for fraudulent inducement typically face a significant legal hurdle known as the parol evidence rule, which prohibits parties from introducing evidence of oral statements to vary the terms of a written contract.
No Doubt's complaint alleges that its agreement "prohibits" the use of the No Doubt avatars without the prior written consent of No Doubt. The contract, however, is not as clear as No Doubt's complaint suggests, which may turn out to be a good thing for the band.
Under California law, if a contract is ambiguous, evidence of oral statements made prior to the execution of the contract can be introduced to help explain the terms of the contract. In No Doubt's case, the contract (which is attached to the publicly-filed complaint) expressly provides that the likeness of the band members "as implemented in the game" is subject to the prior written approval of the band. This provision may be found legally ambiguous because it is unclear whether "as implemented in the game" means the way the avatars look, or also what they can be made to do (i.e., sing "Honkey Tonk Woman" in a male voice). Activision will undoubtedly advocate the former, and No Doubt the latter.
One can only assume that Activision has something in writing from No Doubt signing off on the general appearance of the No Doubt avatars. Such a writing will boost Activision's argument that No Doubt's written approval rights were limited to the general appearance of the characters, and that even if they were not, No Doubt waived any additional approval rights by providing written consent.
No Doubt's complaint, however, makes reference to evidence which, if true, is likely to be devastating to Activision's case. No Doubt claims that Activision represented both before and after the contract was signed "that its name and likeness would only be used in conjunction with three selected No Doubt songs within Band Hero." If No Doubt can prove these statements were made (or better yet get some Activision executive to admit that he or she said it), Activision will be hard-pressed to prevail on the claim that it had the right to make Gwen Stefani sound like Mick Jagger or otherwise manipulate the No Doubt avatars.
Regardless of the outcome of No Doubt's lawsuit, it seems likely that both game publishers and artists negotiating future contracts for video games will avoid the problem by clearly spelling out what can and can't be done with avatars. If No Doubt had done that here, the voice of Gwen Stefani's avatar would have remained that of "just a girl" and she wouldn't be heard crooning "Honky Tonk Woman" in a man's voice.
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