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Friday, November 13, 2009

Activision Avatar Update: I'm Just a.... Honky Tonk Woman

We had previously mentioned Courtney Love’s threatened lawsuit against Activision for breach of contract – namely, for creating a game “Band Hero” that allows players to use a Kurt Cobain avatar to sing other artists’ songs.  Now, the band No Doubt has sued Activision for using Gwen Stefani’s avatar to sing other artists’ songs, such at the Stones’ Honky Tonk Woman.  As reported by attorney Patti Millett at Huffington Post, the lawsuit calls these performances "virtual karaoke circus act[s]."

Millett provides a detailed analysis

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).

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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.

What could possibly be more fun than a band called No Doubt arguing that a contract clause is ambiguous?  Or, that the singer famous for the lyric "I'm just a girl, all pretty and petite" is now singing about "a gin-soaked bar-room queen in Memphis"?

Compare and contrast:

[Meredith R. Miller]

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