'Guitar Hero's' use of Cobain stirs rights ruckus

The guitars blare a familiar tune and Kurt Cobain approaches the microphone, moppish hair covering his haunted eyes. But when the lyrics kick in, it’s not the words to “Smells Like Teen Spirit” that come out, it’s “You Give Love a Bad Name.”

Cobain, or at least his computer-generated likeness, can be made to sing the Bon Jovi anthem (and many other non-Nirvana songs) in “Guitar Hero 5.” And that has his estate threatening legal action.

The game features two Nirvana tunes among the 85 songs that come with the game. Once players successfully complete one of those songs, Cobain’s likeness is unlocked — and can be used as the lead singer for any song in the game, mimicking the moves of the song’s original performer.

That means the father of grunge bounces like Flavor Flav in Public Enemy’s “Bring the Noise 20XX” or swoons like Gwen Stefani in No Doubt’s “Ex Girlfriend.”

Courtney Love, Cobain’s widow, calls it “breach of contract” and recently used her Twitter feed for a multihour, obscenity-filled rant about the game.

Former bandmates Dave Grohl and Krist Novoselic say they are “dismayed and very disappointed in the way a facsimile of Kurt is used” and are urging the company to “re-lock” the character and restrict Cobain’s image to just Nirvana songs.

Activision maintains the estate (specifically, Love) signed a contract giving it the proper licensing rights.

Attorneys who work in the videogame industry, though, say the matter is anything but clear-cut.

“It’s going to be a matter of contract interpretation and whether (the estate) gave Activision a fairly broad right to use his image in the game or whether they gave Activision the right to use the image, but only for certain songs,” says Stephen Smith, a partner specializing in entertainment litigation with Greenberg Glusker.

Cobain is just one of several musicians, including Carlos Santana, Shirley Manson and the late Johnny Cash, who are unlockable and can be used to front any band or song in “Guitar Hero 5″. (None of the other musicians or estates has spoken out against the game.)

The squabble brings to mind the 1997 debate that arose when Dirt Devil aired a commercial during the Super Bowl featuring the late Fred Astaire dancing with a vacuum cleaner.

The controversy surrounding that ad made celebrities more careful to specify in their will how their image could be used after their death. But few, if any, had thought of videogames before now.

Similarly, the dispute is also likely to make negotiations for celebrity appearances in future games a little more complicated.

In the meantime, Activision can’t be too upset with the flood of media attention the game is receiving. “Guitar Hero 5″ is going head to head with “The Beatles: Rock Band” on retail shelves during a period when music games may be past their peak of popularity. (Sales of the genre are down almost 50% this year.)

But the bump in sales ultimately might not be worth the headache. Given Love’s bitter tweets about the company and the reaction of Nirvana’s surviving members, it seems unlikely Nirvana music will be included in future “Guitar Hero” games.

“Licensing agreements, at the end of the day, are about a relationship that’s ongoing,” says Smith, who last year brokered a deal for Ubisoft to acquire the rights to use the name and likeness of author Tom Clancy. “That’s why I’m surprised Activision is caught up in this. When it’s all said and done, you don’t want Courtney Love mad at you.”

Additionally, the move isn’t making Activision overly popular with fans — of both the game and Nirvana.

“If he was only in the game portraying Nirvana songs and acting as he did on stage during his era (mostly standing in place) it would be fine,” says Tom Kidd, a 32-year old core gamer. “To see him running around smiling and hear Flavor Flav’s voice coming out of his mouth is just ghoulish.”

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