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Activision Files Countersuit Against No Doubt Over Band Hero
by Kris Graft [PC, Console/PC]
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December 9, 2009
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After pop group No Doubt filed a lawsuit over the use of its likeness in the music game Band Hero, defendant Activision has filed a countersuit against the band for breach of contract and unjust enrichment.
In a court filing from December 3 -- found originally by The Hollywood Reporter's law blog -- Activision accused No Doubt of failing to do its due diligence before signing a deal that put the band's likeness in the Band Hero games. No Doubt originally filed suit against Activision in November, as the band members objected to the use of their likenesses in non-No Doubt songs.
Activision said in its answer and counterclaim that "it has been publicly known that certain users of Guitar Hero video games are able to 'unlock' in-game characters and then can choose to play songs performed by other artists using 'unlocked' characters."
In the counterclaim, the publisher said that No Doubt -- made up of members Gwen Stefani, Tam Dumont, Tony Kanal, and Adrian Young -- is not entitled to any damages or other relief. The filing also said that No Doubt's complaint "fails to state a claim upon which relief can be granted."
Activision's counterclaim alleges that No Doubt's actions are "unjustified" and that the band has "failed to honor its promises." Among those alleged promises are marketing services to promote the Band Hero game.
The suit read, "Even though Activision fully paid No Doubt under the parties' contract, No Doubt failed and refused to perform the services No Doubt had agreed to provide and otherwise breached its agreement with Activision, including by refusing to perform promotional services."
Activision's counterclaim also alleged that the band has become "unjustly enriched by its wrongful conduct" against the publisher, accusing No Doubt of keeping money paid for services that it has yet to provide. Activision is seeking compensation for damages.
Shortly after No Doubt's initial lawsuit, Activision stood by its contract with the band, stating, "Activision has a written agreement to use No Doubt in Band Hero -- an agreement signed by No Doubt after extensive negotiations with its representatives, who collectively have decades of experience in the entertainment industry."
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Even if it wasn't clearly specified in the contract, No Doubt's representative's should have taken pause at "may use the band's likeness" and how open ended that is and asked for clarification on what that entailed. I'm sorry but Activision is entirely in the right here, the band signed something they should have looked at more closely and have backed out of work that has already been paid for, not exactly a very professional stance.
But the point we are missing here is the precedent this sets for Activision, do they care so little about their HERO franchise? by being hardliners on contracts they alienate the artists ie the draw to their games. Wouldn't it have been easier if they patched the games to disallow cross-usage, sure they may have set a dangerous precedent where everyone would want to amend their contract, but its better than the bad blood they are creating.
I would imagine that artists are gonna think twice before entering into a contract with Activision/Guita hero.
Alternatively Artists may now have been forewarned and will simply iron out the details of their contracts a bit better, rather than staying away from the cash cow entirely.