Activision Avatar Update: I’m Just a…. Honky Tonk Woman
We had previously mentioned Courtney Love’s threatenedlawsuit against Activision for breach of contract – namely, for creating a game“Band Hero” that allows players to use a Kurt Cobain avatar to sing otherartists’ songs. Now, the band NoDoubt 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 callsthese performances “virtual karaoke circus act[s].”
Millett provides a detailed analysis:
No Doubt admittedly grantedActivision a license to use the names and likenesses of its members in the BandHero game and on certain advertising. No Doubt claims, however, that it wasnever told that the virtual likenesses of its members, so called”avatars,” could be manipulated by gamers so that they perform songsby other artists and sing in voices other than their own.
No Doubt’s lawsuit specificallycomplains about the fact that the Gwen Stefani avatar can be made to performthe Rolling Stone’s hit “Honky Tonk Woman” in a male voice. No Doubtapparently means no offense to Mick Jagger and Keith Richards — the complaintspecifically states that No Doubt are avid fans of the Rolling Stones — theyjust 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 ofNo Doubt bassist Tony Kanal can be made to sing lead vocals on No Doubt songsin a female voice.
No Doubt are not the first rockersto complain about Activision’s manipulation of rock star avatars. In September,Courtney Love and Kurt Cobain’s former Nirvana band mates Dave Grohl and KristNovoselic strongly objected to the fact that Cobain’s avatar could be used toplay 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 thelawsuit is whether the license granted by No Doubt allows Activision to do whatit did. Ultimately, this will be a question of contract interpretation.
No Doubt’s lawyers appear to havesome concern that a judge or jury may find that the language of the contractallows Activision to do what it did because the complaint includes causes ofaction for fraudulent inducement and rescission, in addition to a claim forbreach of contract. No Doubt’s claims for fraudulent inducement and rescissionin essence say that No Doubt was misled into signing the contract and that ifthe members had known that Activision had intended to manipulate their avatars,they would never have signed the contract.
Claims for fraudulent inducementtypically face a significant legal hurdle known as the parol evidence rule, whichprohibits parties from introducing evidence of oral statements to vary theterms of a written contract.
No Doubt’s complaint alleges thatits agreement “prohibits” the use of the No Doubt avatars without theprior written consent of No Doubt. The contract, however, is not as clear as NoDoubt’s complaint suggests, which may turn out to be a good thing for the band.
Under California law, if a contractis ambiguous, evidence of oral statements made prior to the execution of thecontract can be introduced to help explain the terms of the contract. In NoDoubt’s case, the contract (which is attached to the publicly-filed complaint)expressly provides that the likeness of the band members “as implementedin the game” is subject to the prior written approval of the band. Thisprovision may be found legally ambiguous because it is unclear whether “asimplemented in the game” means the way the avatars look, or also what theycan 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 Activisionhas something in writing from No Doubt signing off on the general appearance ofthe No Doubt avatars. Such a writing will boost Activision’s argument that NoDoubt’s written approval rights were limited to the general appearance of thecharacters, and that even if they were not, No Doubt waived any additionalapproval rights by providing written consent.
No Doubt’s complaint, however,makes reference to evidence which, if true, is likely to be devastating toActivision’s case. No Doubt claims that Activision represented both before andafter the contract was signed “that its name and likeness would only beused in conjunction with three selected No Doubt songs within Band Hero.”
If No Doubt can prove thesestatements were made (or better yet get some Activision executive to admit thathe or she said it), Activision will be hard-pressed to prevail on the claimthat it had the right to make Gwen Stefani sound like Mick Jagger or otherwisemanipulate the No Doubt avatars.
What could possibly be more fun than a band called No Doubtarguing 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]