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>Activision Sued by Rock Band No Doubt Over In-Game Avatars

>Having only recently rid itself of Gibson Guitar Corp.’s Guitar Hero-based patent infringement lawsuit, Activision probably expected to be able to put away the aspirin for a while. Instead, the game development and distribution giant is facing another headache-inducing suit, this one filed by established pop/rock band No Doubt, which was none-too-pleased to discover that their likenesses are available for use as playable character avatars throughout Activision’s new release, Band Hero.

The band’s complaint, filed November 4, claims damages for breach of contract, fraudulent inducement and infringement of right of publicity, as well as violations of California’s Business and Professions Code, in connection with No Doubt’s license agreement with Activision. (Case No. BC425268, in the Superior Court of the State of California for the County of Los Angeles.) According to the band, No Doubt entered into a limited license agreement with Activision in May 2009 with the understanding that the likenesses of the band’s members would be used only in connection with gamers’ performance of the three No Doubt songs featured in the Band Hero game. Upon the game’s release on November 3, it was discovered that each of the band members’ likenesses could be used by a player in the performance of any song in the game’s catalog.

No Doubt alleges that Activision intentionally withheld this detail of Band Hero‘s gameplay in order to secure the necessary likeness rights. The band also claims that the universal availability of the avatars within the game is undermining the band’s credibility and public image, since that feature allows portrayals of its members engaging in performances that do not reflect No Doubt’s artistic style and character.

Activision has stated that, while it has the technical ability to disable or modify the avatar feature, the company feels that it has acted within its contractual rights and will not remove or restrict use of the band’s likenesses. (Not surpisingly, Activision’s president has also cited a desire to avoid jeopardizing revenue as a factor in the company’s stance.)

Likeness rights disputes are a recurring theme for Activision, which is also currently tussling with rocker Courtney Love over the inclusion of late husband Kurt Cobain as a playable avatar in Guitar Hero 5. (Nirvana bandmates Dave Grohl and Krist Novoselic have also weighed in, condemning what they feel is a disrespectful exploitation of Cobain’s memory.) And although the company ultimately engaged in a rare show of deference, Activision previously feuded extensively with the estate of Jimi Hendrix over use of the guitar legend’s likeness.

We previously addressed right of publicity issues in connection with the video game industry, highlighting the increasing use of celebrity involvement to generate interest in gaming titles. As Activision begins to ruffle feathers more frequently with respect to likeness rights, however, one has to wonder whether the company is in danger of killing a proverbial golden goose. If developers continue the recent trend of making controversial use of celebrity likenesses, at what point will the consequences of the backlash outstrip the revenues generated by those uses?

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November 2009