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No Doubt/Activision suit raises issues

Legal battle is publisher's 2nd high-profile scuffle

No Doubt’s suit against Activision over “Band Hero” brings up issues for the vidgame publisher that could extend far beyond legal considerations.

The suit, filed Wednesday in L.A. Superior Court, is the second such high-profile scuffle for the company in two months. The question is whether such complications will make other artists less willing to license their images for games and game publishers such as Activision.

“I think it does hurt them,” said Stephen Smith, a partner specializing in entertainment and videogame litigation with Greenberg Glusker. “I find it extraordinary that they would let this happen. No matter what the contract said, just from a business point of view, you would think you would want to keep a band like No Doubt happy.

“The music community is notoriously insular. If you get a bad name with a couple of well-respected artists, you’re going to have trouble with all of them.”

“Band Hero” is a new franchise for Activision but is a close cousin of the hit “Guitar Hero” line of games, which have earned more than $2 billion in their four-year history.

The controversy comes as sales of music genre titles are behind 2008’s pace by 40%.

Activision is still dealing with the PR fallout from its use of Kurt Cobain in “Guitar Hero 5.” Cobain’s widow, Courtney Love, and former bandmates complained loudly about the ability to use the grunge icon’s likeness in any song, including (somewhat ironically) No Doubt’s “Ex Girlfriend.”

To date, no lawsuit has been filed in that dispute.

If there is an upside to these disagreements, it’s that the “Band Hero” name is in front of consumers as the holiday shopping period gets under way. The title might have been overshadowed by the plethora of other new music games on the market, including “The Beatles: Rock Band” and “Guitar Hero: Van Halen.”

In a statement, the members of No Doubt said they agreed to lend their likenesses to the game solely for use with the band’s own songs. However, once players “unlock” the characters, they can use avatars of Gwen Stefani and her bandmates for any song in the game.

The band members seek an injunction prohibiting the use of their likenesses in songs other than the three No Doubt tracks included in the game as well as undisclosed damages. Activision maintains the suit is without merit and said it believes the contract gives it the legal right to use the avatars as it has in the game.

Bands work hard to create a certain look and style – and it doesn’t often translate well to other forms of music. It’s particularly important to rap artists, whom Activision has been wooing recently with its “DJ Hero” franchise.

“Artists want consumers to think their style is cool,” Smith said. “Activision makes it almost a parody. I’m surprised they would do that to their artist partners.”

In contrast, rockers including the Who and the Beatles have been enthused about working with Viacom’s Harmonix, makers of the rival “Rock Band” franchise. Pete Townshend and Roger Daltrey even agreed to perform a two-hour concert for guests of the developer at a videogame industry trade show in 2008.

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