ND Allowed to Move Forward with Activision Lawsuit

Thanks to Heather from GreenerPastures.us for the info,No Doubt and their legal team won a victory in court yesterday with their breach-of-contract lawsuit against Activision regarding the band’s appearance in the Band Hero video game.As fans may remember,back in Nov.2009,the band sued Activision,alleging that they did not agree to allow the video game developer to let players use their virtual likenesses to perform other songs available on the game(one song speficially mentioned in the suit was ”Honky Tonk Woman” by The Rolling Stones.) Now,according to The Beverly Hills Courier,a state appellate court panel ruled yesterday that the band can move forward with the lawsuit,despite Activision’s attempt to have the case dismissed.Much congratulations to No Doubt on winning the appeal.We will keep you updated on any further developments with the lawsuit as they are announced;in the meantime,if interested,you can read the official legal filing of the case HERE.

No Doubt Breach Of Contract Lawsuit Update

(CNS) Posted Tuesday February 15, 2011 – 2:34pm

Members of the band No Doubt can move forward with a breach-of-contract lawsuit against a video game developer over the use of their likenesses in the game “Band Hero,’ a state appellate court panel ruled today.

The three-justice panel of the 2nd District Court of Appeal upheld Los Angeles Superior Court Judge Kenji Machida’s decision last April 15 denying a dismissal motion by lawyers for Activision.

They had asked that the case be thrown out on grounds it violated the company’s right to free speech through creative expression.

Machida said the crux of the suit is an allegation that the firm used the digital avatars of the band to a greater extent than allowed under a contract.

“Band Hero” includes three songs from No Doubt in which players can perform as members of the group fronted by singer Gwen Stefani.

The suit, filed in November 2009, alleges they did not agree to let players use their virtual likenesses to perform other songs available on the game.

EDIT-More details about yesterday’s court ruling from Bloomberg.com:

A panel of the California Court of Appeals in Los Angeles ruled today that Activision’s use of the No Doubt likenesses in “Band Hero” isn’t protected free speech under the U.S. Constitution’s First Amendment because it doesn’t add creative elements to significantly “transform” their depiction.

“The context in which Activision uses the literal likenesses of No Doubt’s members does not qualify the use of the likenesses for First Amendment protection,” the judges said. “Activision’s use of life-like depictions of No Doubt performing songs is motivated by the commercial interest in using the band’s fame to market ‘Band Hero.’”

Rival video-game maker Electronic Arts Inc. today argued in a federal appeals court in Pasadena, California, that its use of alleged likenesses of former college and National Football League players in its “NCAA Football” and “Madden NFL” games is protected by the First Amendment.

Ashley Dyer, a spokesman for Santa Monica, California-based Activision, didn’t immediately return a call to his office.

No Doubt sued Activision in 2009 for breach of contract, saying “Band Hero” allows likenesses of the band’s members to perform songs by other acts.

10 Cover Songs
No Doubt said in its complaint that in 23 years it has only released 10 cover songs. In its agreement with Activision, whereby the band licensed the game maker to use its work in the new version of “Guitar Hero,” No Doubt only permitted likenesses of the members to perform three of the band’s songs, according to the complaint.

A character manipulation feature of the game allows players to create virtual performances, including that of No Doubt singer Gwen Stefani performing the Rolling Stones’ “Honky Tonk Woman” with her computer character “in a male voice boasting about having sex with prostitutes,” according to the complaint.

One of the three judges on the appeals panel wrote separately to argue that the license agreement between the band and the video-game maker precludes Activision from seeking First Amendment protection.

“This was a commercial agreement that granted a limited license to Activision for use of No Doubt’s character likenesses,” Justice Norman Epstein said. “Having agreed to its terms, Activision cannot be heard to claim that its use of the property in ways expressly prohibited by the agreement is protected by the First Amendment.”

The case is No Doubt v. Activision, B223996, California Court of Appeals, Second District Los Angeles).