No Doubt attorney speaks out against Activision in Band Hero suit
Rock band's legal representation at Kendall Brill & Klieger says group has lost millions, hopes Activision will apologize; case going before jury October 15 in Los Angeles Superior Court.
The legal proceedings between No Doubt and international heavyweight publisher Activision over Band Hero will go before a jury beginning October 15 in Los Angeles Superior Court, the band's legal representation has told GameSpot.
No Doubt attorney Bert Deixler explained that the band has suffered losses of millions, that Activision's "meritless" appeals have delayed the case, and that the publisher's settlement offers thus far have been lacking. Deixler also claimed that Activision secretly hired actors to design dance moves for Band Hero that no member of No Doubt had ever performed.
No Doubt sued Activision in November 2009, claiming the publisher had no contractual right to allow the group's in-game avatars to be used to perform other artists' songs. The band took exception in its suit with having individual band members perform other artists' songs, particularly those that include suggestive lyrics such as The Rolling Stones' "Honky Tonk Women." The suit claims this action turns the band "into a virtual karaoke circus act."
Activision countersued No Doubt a month later, saying it is "publicly known" that characters in previous Guitar Hero games have been "unlockable" in the same fashion, suggesting No Doubt did not exercise due diligence before entering into the agreement.
Activision's legal team did not respond to interview requests.
GameSpot: No Doubt originally sued Activision in 2009. Why are the proceedings taking so long?
Bert Deixler: Activision has delayed by filing unsuccessful motions and taking meritless appeals from losing motions. And, of course, the courts are crowded, and we had to return to the end of the line to wait for a courtroom.
GS: In Activision’s immediate 2009 countersuit, the publisher claimed No Doubt did not exercise due diligence before entering the agreement for Band Hero and that it was “publicly known” that avatars could be unlocked and used to sing other songs. What’s your response to this?
BD: It’s nonsense. The contract clearly defined the rights of the parties. Two superior court judges, three appellate court judges, seven California Supreme Court justices, and a federal judge all agree that Activision’s rights are limited to the contract. Activision’s “publicly known” argument is irrelevant, and, incidentally, false. Indeed, several of their executives testified that they didn’t know about unlocking.
GS: In May, superior court judge Ramona See ruled that the case should go before a jury because of “genuine disputes” including questions of “loss.” How will you prove No Doubt’s unauthorized appearance in the game caused them loss?
"Activision even went as far as secretly hiring actors to create dance movements for the game that no band member has ever performed."
BD: We don’t license the use of our songs and our appearances for free. Here, we licensed No Doubt’s appearance for three songs, but Activision instead used it in 63 unpermitted songs. Activision also created a game that, contrary to No Doubt’s rights, allows for any member of No Doubt to appear as a solo artist, as a member of another group, or as a performer in a capacity that he or she never actually performs in. Activision even went as far as secretly hiring actors to create dance movements for the game that no band member has ever performed. There’s no question that there’s loss, and it is millions and millions of dollars. A jury will understand why the use of an artist’s appearance to endorse projects without permission is harmful. Many, many artists have succeeded when they complained about having their valuable names and likeness taken without permission. Our experts will have innumerable examples.
GS: No Doubt has won numerous partial victories thus far in the case against Activision, including having several Activision claims tossed out, as well as a request to have the matter bumped up to a federal court. How have these decisions advanced No Doubt’s argument against Activision?
"So far Activision has been ordered to pay No Doubt nearly $100,000 in attorneys’ fees and costs, and Activision continues to pursue a strategy that will have it financing both sides of the lawsuit. That’s a pretty bad business idea."
BD: Yes, our legal judgments have proven to be correct and Activision’s have proven to be incorrect repeatedly. We look forward to presenting our case to the jury. Activision will come to recognize that its strategy of ignoring No Doubt’s rights, then ignoring No Doubt’s requests that it not release the infringing game, then delaying and losing appeals and motions in an effort to discourage No Doubt from pursuing its claims has just run up the costs that Activision will wind up paying. So far Activision has been ordered to pay No Doubt nearly $100,000 in attorneys’ fees and costs, and Activision continues to pursue a strategy that will have it financing both sides of the lawsuit. That’s a pretty bad business idea.
GS: Activision recently settled in a high-profile case against fired developers Jason West and Vince Zampella for an undisclosed sum. Is a settlement at all possible in the case between No Doubt and Activision?
BD:Settlement is always possible. Unfortunately, Activision’s settlement proposals thus far have not reflected its substantial exposure to millions of dollars in damages and attorneys’ fees. Should a proposal be forthcoming that does, No Doubt will entertain it. If not, the case will go to trial, and No Doubt will prevail and obtain a jury award that will have Activision regretting its decision to abuse these artists’ rights and wishing it had settled this case when it had the chance.
GS: What does No Doubt want from Activision in this case?
BD: Ideally they would like Activision to apologize and promise to never mistreat artists in the manner they have mistreated No Doubt and countless others. The group told Activision repeatedly that they were not interested in filing a lawsuit and that they didn’t want this to happen. Now No Doubt is stuck asking for compensation for the misappropriation of its rights, and an injunction preventing the continued sale and future release of the infringing product.
GS: Lastly, what are the implications here, provided No Doubt emerges the victor?
BD: Artists can’t allow themselves to be ripped off by multi-national billion dollar companies that act only in their own financial best interest while completely ignoring legally binding agreements. We hope Activision has learned a lesson and will think twice when deciding to risk the cost of litigation as a business practice as a result of No Doubt bringing this lawsuit, and, if it persists in taking this case to trial, Activision will be forced to learn an even harsher and more expensive lesson.
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