Game Over! No Doubt Avatarnished?

The band No Doubt has filed a lawsuit against video game creator Activision Blizzard in the US, claiming fraudulent inducement and breach of contract. No Doubt entered into a contract with Activision allowing the company to use No Doubt band members in Activision’s new game Band Hero.

Band Hero is a video game which allows gamers to play instruments and/or sing as the avatars of musicians and be rated on their performance. In the game(released earlier this week in the US) it is possible to have Gwen Stefani’s avatar sing over sixty different songs from various artists. No Doubt’s suit claims that the contract with Activision only allowed the use of their music and likeness in “no more than three” of No Doubt’s own songs.

Besides being upset that their avatars can perform other bands’ songs, No Doubt’s main gripe is that some of the songs are “not appropriate”. In particular the band is concerned about the ability to make Gwen Stefani’s avatar perform “Honky Tonk Woman” by The Rolling Stones in a male voice (a song about having sex with prostitutes), and the “scandalous” “I heard it through the Grape Vine” by Marvin Gaye. No doubt claims that the game has “transformed No Doubt band members into a virtual karaoke circus act” and is seeking damages as well as an injunction to cease the use of their name or images.

A claim of fraudulent inducement is akin to misleading and deceptive conduct in Australia. Interestingly, in the US there is a private right of publicity. However, No Doubt has not argued breach of their publicity rights.  This is probably due to the string of decisions concerning Fantasy Sports, where the right of publicity has been trumped by the first amendment (right to freedom of speech, press, assembly etc). Most recently the makers of a fantasy NFL game were allowed to use a retired player James “Jimmy” Brown’s image as an avatar without compensating the player (see the Trademark Blog’s discussion).

Band Hero is scheduled to be released in Australia (and the rest of the world) before the end of the year.  This begs the question, what could No Doubt do about their honky tonking avatars in Australia?? In Australia there are no publicity or personality rights, however No Doubt could potentially bring actions in Australia for:

  • passing off;
  • s52; and
  • defamation.

 

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