Activision has lost some footing in its ongoing legal dispute with pop group No Doubt, as a judge rules that the liberal use of the musicians' likenesses in Band Hero
doesn't fall under the protection of free speech.
No Doubt originally sued the publisher in November 2009
, claiming that they gave permission for their likenesses to be used only to play their songs, not to be used as general-purpose player avatars that can be put to any piece of music in the game.
Band members Gwen Stefani, Tony Kanal, Adrian Young, and Tom Dumont alleged that "without the band's knowledge or approval, Activision turned the group into virtual karaoke players by having them perform over 60 additional songs by other musical groups."
But Activision filed a counter-claim against the group, claiming the group were responsible for its own due diligence during the contract negotiation process, and that it "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" -- despite being "fully paid."
To defend its right to use the avatars, Activision had moved to invoke freedom-of-speech protections, an effort the LA Times today reports was rejected
, although Activision has the opportunity to appeal if it so chooses. A strategy to frame the issue as a copyright issue rather than a right-of-publicity matter was also previously rejected, according to the report.
Activision encountered similar trouble with Courtney Love, the widow of late Nirvana frontman Kurt Cobain, who has stated her intention to sue
over the similarly-interchangeable use of Cobain's likeness in Guitar Hero 5