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Activision fires back at No Doubt in court

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In response to rock band No Doubt’s lawsuit against Activision over use of the band members’ likenesses in the Band Hero video game, the game developer has filed a response saying it has done no wrong and faults No Doubt for failing to request a restriction on the game function that lets users unlock computerized characters to perform any of the 60-plus songs in the game.

Activision also filed a counterclaim accusing the quartet of reneging on its promise to help market and publicize the game, which was released in November, and alleged that No Doubt has been “unjustly enriched by its wrongful conduct against Activision.”

No Doubt’s suit, filed Nov. 4 in Los Angeles County Superior Court, said the band originally agreed to let Activision use a maximum of three songs in Band Hero, which also features songs and computerized likenesses, or avatars, of country-pop singer Taylor Swift and Maroon 5 singer Adam Levine. Band Hero is part of Activision’s Guitar Hero video game series.

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The case is being closely watched in the entertainment world because the outcome probably will affect the extent to which artists are able to retain control of their image in the virtual world.

Gamers can unlock the celebrity avatars to let them perform any of the Band Hero songs, which No Doubt considered a violation of its agreement with Activision. No Doubt’s suit charged that that function constitutes an inappropriate and damaging manipulation of the group’s public image.

“What this case boils down to,” Activision’s filing said, “is not a violation of the right of publicity, but rather No Doubt’s failure to request that their grant of rights to Activision be limited to use of their likenesses only in connection with No Doubt songs. With sophisticated management and legal representation, extensive contract negotiations and meeting [sic] to go over any and all questions about the game, No Doubt had every opportunity to request that the broad grant of rights to Activision be restricted. . . . But No Doubt’s representatives did not timely request that their grant of rights be limited in this way.”

Activision’s response states repeatedly that “it has been publicly known that certain users of ‘Guitar Hero’ video games are able to ‘unlock’ in-game characters and then choose to play songs performed by other artists using ‘unlocked’ characters.

No Doubt’s manager, Jim Guerinot, said Tuesday: “With respect to the ‘Everybody knows’ defense they’re putting forth: Everybody doesn’t know, or we wouldn’t be here today. Our contract specifically states what is required regarding this issue, and we relied on the written contract we had with them, not the ‘Everybody knows’ rule that they’re asserting.”

An Activision spokesman said the company would have no comment beyond its court filings.

Activision also moved to shift the lawsuit from Superior Court to U.S. District Court because it said copyright issues at stake made it a federal matter.

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randy.lewis@latimes.com

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