The rock group No Doubt and video game maker Activision have settled a 3-year-old dispute, three weeks before a trial judge would begin hearing No Doubt’s complaint against the way Activision allowed the group’s likenesses to be used in the “Band Hero” game.
No terms of the settlement have been released. (A No Doubt representative declined to comment.) But rulings leading toward the trial had largely come down in favor of No Doubt’s position that Activision used the band’s image and music in ways that were unauthorized under its original contract to be part of “Band Hero.”
In particular, No Doubt had objected to the game feature that allows characters to be “unlocked” and appear to perform music other than the songs the group had agreed to let Activision use in the game. Activision countersued, contending that the band had failed to promote the game as it had contractually promised to do.
No Doubt’s original suit, filed in 2009, argued that the unlocking feature would allow “Band Hero” players to have Gwen Stefani’s game avatar singing the Rolling Stones’ “Honky Tonk Women,” a song that references having sex with a prostitute. In addition, other band members’ avatars could be manipulated to make it appear they were singing No Doubt songs in Stefani’s voice.
Activision argued that its use was allowed under 1st Amendment free-speech protections. But a state appellate court sided in February 2011 with No Doubt, ruling that the fact “that the avatars appear in the context of a video game that contains many other creative elements, does not transform the avatars into anything other than exact depictions of No Doubt’s members doing exactly what they do as celebrities.”
One of the judges also wrote at that time “this was a commercial agreement that granted a limited license to Activision for use of No Doubt’s character likenesses in songs, all subject to No Doubt’s prior approval. Activision’s exploitation of the intellectual property was subject to the terms of the agreement. 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 state supreme court upheld the appellate court’s ruling in June of last year and refused to grant Activision’s request to have the case dismissed.