New Jersey fans of the band No Doubt were probably happy to see the addition of its songs to the video game Band Hero, a spinoff of the popular Guitar Hero game series. But the members of No Doubt are less than pleased with the liberties the game makers have taken with their music and likenesses. They’re suing the producers of the game, Activision Publishing Inc., for fraud, violation of publicity rights and breach of contract.
Much like its predecessor, Band Hero allows players to sing and play selected artists’ music while watching the musicians’ avatars perform on a screen. But No Doubt and its attorneys say the group was misled about how those avatars would be used — specifically, that players would be able to use the band’s likenesses to perform other artists’ songs. For example, players can use the avatar of lead singer Gwen Stefani to sing the Rolling Stones’ “Honky Tonk Woman.” Or one of the other band members’ likenesses could be set up to sing a song with Stefani’s voice. These are examples laid out in the band’s lawsuit it filed against Activision in November 2009, claiming the gaming giant has turned the band “into a virtual karaoke circus act.”
A Superior Court judge rejected a motion by Activision’s attorneys to dismiss several claims of the lawsuit. The judge did deny a request for an injunction to prevent Activision from using band members’ likenesses to perform other artists’ work. But the denial was on a technical basis, so the band could pursue that injunction again if it wins at trial.
One of Activision’s attorneys said the publisher is confident in its defense and is looking forward to presenting its evidence, which includes a video recording of the band being told about the game’s unlockable features — including the ability for players to use a band’s avatars to perform other artists’ music. Activision claims this unadvertised feature has been around for years and that the company has done nothing wrong. The case will go to trial later this year.
When it comes to games in which real people are represented by artificial likenesses, should there be an expectation that those likenesses stay true to their real selves? In this case, that seems not to matter. The issue is whether the band was made to understand the liberties players would be allowed to take.
Source: NorthJersey.com, “Jury to hear No Doubt’s claims against game maker,” The Associated Press, May 30, 2012