Who’s to blame when Gwen Stefani, the adorable Orange County rock princess representing all that is cute with the world, is forced to sing songs (in public) about having lesbian affairs with divorcees?
Evidently it’s her own attorneys.
But according to a complaint filed in the Superior Court of California by the band’s litigation attorneys earlier this month, that’s what defendant Activision is guilty of by allegedly tricking the band into signing away rights to their likenesses to be included in one of the most popular video games of all time, Rock Band, where players can play along with fake instruments to fake yet ostensibly authorized versions of their favorite stars in a virtual rock and roll fantasy world.
The band was paid a negotiated fee. The band then showed up to have their images recorded for the motion capture process. The band later approved those images pursuant to the terms of the agreement.
Some time in September, someone in the band figured out that their characters could be manipulated to have bassist Tony Kanal sing the lead to “I’m Just A Girl” in a girls voice wearing a dress, AND Gwen could be manipulated to sing, among other things, these tasty lyrics from the Rolling Stones:
I laid a divorcee in New York City.
l had to put up some kind of a fight,
The lady then she covered me with roses.
She blew my nose and then she blew my mind.
By this time, According to Activision, it was too late to have the feature “locked” (which is possible, and some bands’ lawyers have evidently obtained this according to Activision) so the band decided to sue for injunctive relief to have the games taken off the awaiting Christmas shelves.
So now we have a problem. It would be incredibly expensive for Activision to recall all these games and all their efforts to get this thing on the shelves in time for Christmas would be for naught. So they dug their heels in.
Their defense is something like this: “No Doubt’s Lawyer is an is an idiot. “
Harsh, but the defense may actually work. I’ve poured over this “simple” 3 page license agreement and there is no smoking gun. The agreement does not specifically say what the band needs it to say.
Was there a meeting of the minds on this deal? Every contract requires a meeting of the minds so even if No Doubt’s attorneys were tricked into signing away more than they bargained for, that could nullify the agreement.
However, these are sophisticated parties. The members of No Doubt are not the kind of struggling musicians that call my show to complain about how they’re being taken advantage of by the man. No Doubt supposedly can afford the best representation money can buy. If this “unlockable” feature was in 40 million units that had been on the market beginning in 2005, you have to lend at least a little credence to Activision’s “Everybody Knows” defense. So how did this happen?
Evidently No Doubt’s lawyers didn’t feel like they needed to know what a child of 7 knows about these games, that part of the fun is that when you’ve achieved a certain skill level, you can manipulate characters and make them wear crazy stuff and do crazy things.
Why do you think your kid is so mesmerized by their console? They want to get to this point. Activision says everybody knows this. The band shouldn’t have to know, but Activision’s argument is that their lawyers should have known, as they state in their response while requesting to have the case removed to Federal Court as more of a “copyright case.”
“What this case boils down to is not a violation of the right of publicity, but rather No Doubt’s failure to request that their grant of rights to Activision be limited to use of their likenesses only in connection with No Doubt songs.”
No Doubt, in their complaint says the agreement is clear, it limits the band to performing ONLY three songs. However it looks to me like a decent argument can be made that they approved their images and they licensed 3 songs for inclusion in the game. That’s it. The language that they refer to as limiting their participation seems to be included to prevent Activision from going overboard in areas like advertising and promotion of the game.
Yes, there is language that talks about the band as individuals but to me it reads like that was put in their to allow No Doubt as individuals to appear in other video games possibly. Does a band’s approval right to their image cover every outfit an interactive video game my have them wear? Or should it cover every voice that may be put in the bass players throat? Since the document was silent, and the defense is decent, this will all be for the jury to decide.
After reading the Band’s complaint, it was clear to me that the band’s attorneys had never played an interactive video game like Band Hero, and they possibly had never met anyone that had played one either.
Does this excuse Activision? I say no. Although a child of 7 could have drafted a better document for No Doubt than this thing, a child of 7 would also know that this was sleazy without affirmative approval. The defense is not “No Doubt’s lawyers knew all about this.” It is “No Doubt should have known, they’re supposedly a sophisticated party. This is what we do. We don’t have time, nor a duty, to spell it out to even unsophisticated parties but especially not to these guys.”
Congratulations Activision, you will probably win. You are kind of gross, but you will win. You may have to cough up some more dough but there will be no injunction. But come on!!! Gwen Stefani can sing death metal and you thought that was going to fly? In the same way that No Dobut’s attorneys should have known, Activisions attorneys should have known that deals like this will end up costing as much in litigation as they would gain if they were up front about this stuff.
Video games have enough enemies in conservative elements of our society, why would you want to anger the artists as well. After that, who’s left?
This is why contracts are too long for lay people to understand. Their girth is a testimony to how many people have been swindled over the years. You can bet that No Doubt’s next game agreement will be longer than 3 pages. Great; the terrorists win again!
How can No Doubt win? They’ve got to find the emails through the discovery process that show the game developers having the time of their lives making Gwen do illicit things. At some point someone must have said to someone “hey, don’t tell anyone about this because if the band’s management finds out about this we will have to lock their characters.”
If they can’t find these emails, they need someone to admit that they were hiding this. If they can’t, and Activision can produce proof that other lawyers have negotiated to have their characters locked, the band’s case is in serious trouble.
Should it be removed to Federal Court as primarily a copyright case vs. a state rights of publicity case? I don’t think so, but if I were Activision I would not want this thing going in front of an Orange County jury. What they did may have been technically legal but the band is respected enough to sway a jury who will sympathize with the musicians trying to protect their hard earned and valuable image.
If one of No Doubt’s attorneys calls my show I will provide them with the following free sentence for his next deal of this nature:
GAME PLAYERS WILL ONLY BE ALLOWED TO EXPERIENCE NO DOUBT PERFORMING NO DOUBT RECORDS EXPRESSLY APPROVED BY THE BAND. UNDER NO CIRCUMSTANCES, REGARDLESS OF PLAYER ABILITY, WILL THE ACTIVISION TECHNOLOGY ALLOW PLAYERS TO MANIPULATE OR “UNLOCK” NO DOUBT BAND MEMBERS INTO INDIVIDUAL PERFORMING SCENARIOS AND / OR PERFORM MATERIAL OTHER THAN WHAT IS EXPRESSLY APPROVED HEREIN.
That took all of 30 seconds to come up with. Here’s one more bit of free advice, also worth every penny: If you’re going to make a video game deal, spend some time with a 7 year old. They’re amazing.
resident was not telling the truth when he asserted that illegal aliens would not be covered under the government’s proposed healthcare plan. The fact that Wilson and his supporters tried to add language to the bills specifically prohibiting coverage for illegal aliens and it was removed by their opponents, and the fact that non-citizens have to be covered in some ways by the plan, at least in emergency rooms, is enough to establish a reasonable basis for Wilson’s belief that the President was indeed lying. So the apparent truth to Wilson’s beliefs is a good faith defense to being punished for stating them in public.
