While privacy and data security are hot topics everywhere these days, they are of particular interest to the game industry. Vast quantities of consumer data are generated every day in the game industry, including through consoles, websites, and mobile devices. Data can be a significant asset in that it provides valuable insight into a consumer’s behavior which can be used to improve games and target messages and offerings. However, data can also be a liability.

Data breaches in games are prevalent. In 2011 alone, Sega, Nexon, Codemasters, Sony, Bethesda, Square Enix, and Valve were all targets of successful attacks. We can be certain in 2012 that any game company handling substantial personal information will continue to be a target as well.

The costs associated with a data breach are usually described as several dollars to several hundred dollars per affected record (depending on the extent of the breach and the items included in the long-term costs). Considering that many of the data breaches last year affected more than a million records, those costs are significant.

One company was attacked several times and had a total of more than 100 million records affected, leading to a cost of about $170 million dollars in the month after the attack and projections of over a billion dollars as an all-inclusive cost.

Some costs of a data breach are easier to identify than others. The cost areas range from legal compliance to the potential for lost profits. For legal compliance, consider that there are currently 46 states with data breach notification laws that require companies to inform users in the event of a breach with respect to their personal information. Each law has its own unique requirements, which can make compliance an expensive endeavor in the event of a breach.

Beyond notification and legal compliance, there is lost revenue associated with downtime for the hacked network. There are the customer service and PR costs to consider — these often include credit and identity theft monitoring services for the affected records. There are the promotional costs of give-aways and “welcome back” packages to regain consumer confidence. Unfortunately, the costs often include settling litigation and regulatory investigations that result from the data breach. As an example, one of the largest breaches this year was followed by 25 class action lawsuits and a congressional investigation.

Clearly, the game industry is substantially threatened by data privacy and security issues. Furthermore, given the number and scale of the breaches in 2011, it is also clear the industry, as a whole, was not ready for that threat. Going forward, what can the game industry do to minimize further damage?

The seven steps below are a good start. You might be surprised to see that only one piece of advice is “technical”. Data security and privacy must be driven by sound decisions on a policy level. The technology is only as good as the planning and decision-making behind it.

TO READ MORE OF PROFESSOR GREGORY BOYD’S ARTICLE, GO TO GAMASUTRA.COM

Why arbitration? Considering that EA didn’t file its complaint with the Forum until November 16, 2011, and SSX was slated for a February 2012 release, it likely chose arbitration with the hopes of resolving the issue as quickly as possible. While EA could have (and still can) assert its trademark rights in federal court, arbitration tends to be much faster. When Abstract registered the domain name with Moniker Online Services, Inc., it agreed to resolve any domain disputes brought by 3^rd parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (“UDRP”). The UDRP provides for expedited proceedings when the dispute is alleged to arise from abusive registrations of domain names (i.e. cybersquatting). UDRP ¶ 4(a) requires that a complainant prove the following three elements to obtain an order that a domain name be cancelled or transferred:

(i)  the domain name registered by respondent is identical or confusingly similar to a trademark or service mark in which complainant has rights; and

(ii)  Respondent has no rights or legitimate interests in respect of the domain name; and

(iii)  the domain name has been registered and is being used in bad faith.

With respect to the first element, the arbitration panel agreed with EA that the marks were identical and that EA had rights to the “SSX” trademark.  The panel found that EA’s trademark registrations with United States Patent and Trademark Office (first-use date October 17, 2000), the European Union’s Office for Harmonization of the Internal Market, and many other countries were conclusive evidence on this point. The panel noted that the mere addition of the “.com” suffix was insufficient to distinguish the domain from EA’s trademark.

EA had more difficulty proving the second element. Oddly enough, Abstract just happens to be in the business of buying and selling domain names containing letters that create generic acronyms. Really?  Under UDRP ¶ 4(c)(i), Abstract was afforded an opportunity to demonstrate their rights/legitimate interests in <ssx.com> by showing that prior to EA’s complaint, “the domain name…[was used] in connection with a bona fide offering of goods or services.” The panel concluded that the buying and selling of generic domain names constituted “a bona fide offering of goods” under ¶ 4(c)(i) and, as such, Abstract established its legitimate interest in the disputed domain name. After failing to meet the 2^nd element, the panel held that there was no need to address the 3^rd element of bad faith.

Even though EA lost the battle, it certainly hasn’t lost the war; it still can assert its trademark rights in federal court. UDRP ¶ 4(k) states that the arbitration requirement does not prevent either party from submitting the dispute to a court of competent jurisdiction before or after an administrative proceeding. If EA decides to file suit in federal court, it will likely assert a cause of action under the Anti-cybersquatting Consumer Protection Act (“ACPA”). Under the ACPA, Abstract can be found liable if its registration evinces a bad faith intent to profit from the SSX mark, and the disputed domain name is confusingly similar to a registered trademark. (15 U.S.C. §1125 [d]). The ACPA directs the court to consider various factors bearing on whether the requisite bad faith exists, including whether the registrant offered to sell the domain for financial gain without having used (or intending to use) it in the bona fide offering of goods and services.

EA would likely argue, as they did in the arbitration proceeding, that element of bad faith is met considering that at one point in time, when the site was parked with Google, it was automatically populated with hyperlinks (one of which linked to a computer gaming site).  In ruling that Abstract’s practice of buying and selling generic domain names constitutes a bona fide offering of goods, the panel stated that “where there is no attempt to target” EA’s interest in its mark, or to “capitalize on the good will” associated with it, mere click through revenue is insufficient to establish bad faith. (See Dinah, S.L. v. WebQuest.com, Inc., WIPO Case No. D2005-0573). However, UDRP proceedings are not binding on federal courts, so EA still has a chance of gaining possession of the domain.

All in all, EA may have to look elsewhere to promote its “SSX” games online in the future. For now at least, interested gamers will be forced to type an extra two letters into address bar <http://www.ea.com/ssx>.

Judging from the 2011 press release on behalf of both Adidas and THQ, the miCoach is a digital exercise tool similar to the Nike+ system. The video game, which was tentatively titled MiCoach 24/7, was developing as an interactive experience, featuring Adidas athletes like Dwight Howard, who would guide users through sport-specific personalized training programs. The miCoach system would provide users with real-time feedback on their actual in-game performance via the miCoach heart rate monitor. Through its interaction with MiCoach 24/7, the miCoach hardware was also set to allow users to synchronize their workout devices with Xbox 360 Kinect or PlayStation Move, tracking workout data gathered while away from the game.

The lawsuit seemingly cannot have come at a worse time for THQ, whose financial troubles have been well-documented over the past year. THQ even received a delisting warning from the NASDAQ stock exchange earlier in the year because the company had been trading below the $1 minimum. As a result of these financial troubles, THQ was forced to lay off around 240 employees last month, including developers who were working on MiCoach 24/7. This ultimately led to THQ notifying Adidas in December that it would be unable to finish the game.

Aside from the $10 million in damages, Adidas is also seeking an order that THQ not sell or transfer the rights to the game. While the situation appears to be a pretty straightforward case of breach of contract, one wonders what impact a $10 million damage award from an already ailing company will have on the miCoach game. This late in the development process, Adidas surely would rather see the game completed in lieu of a damage award; the fact that Adidas is seeking an order that prevents THQ from transferring the rights in the game to another publisher indicates this may be true. Continuing the game’s development with a new publisher could mean completely starting over. On the other hand, restricting THQ’s ability to transfer the rights could shelf the game indefinitely. Which is better: a late game or no game at all? By seeking the order, it appears that Adidas is willing to risk the latter. Either Adidas has a lot of faith in THQ, or they simply feel too invested to continue with another publisher.

While the United States does not yet recognize the real-world value of in-game money, South Korea already does. China also has laws regulating virtual goods. These laws suggest that, at least in Asia, legislators are noticing the real-world value that virtual goods can have. In one extreme case, a group of men in China were convicted for theft of virtual goods and currency resulting from real-world extortion in 2009. In that case, the court held that the victim’s “time and real money” were paid to accumulate the value in the virtual goods, and that this value was protectable by law.

Now, in what appears to be the first such case in the European Union, the Supreme Court of the Netherlands held that virtual goods can have real-world value in the course of upholding a criminal conviction. In a case similar to the one in China referred to earlier, two young men were convicted of theft stemming from a violent extortion. In this case, they threatened a 13-yr-old child with a knife and beat him in order to make the child log onto his account in the game RuneScape and transfer his goods to his assailants.

The Supreme Court, in an English-language excerpt, noted that the theft “cost the victim time and effort to obtain the virtual [items]. These objects were of genuine value to him and he [and] the defendant…all wanted feverishly to possess them. The victim had exclusive de facto control over the virtual [items] because these could only be accessed by logging into his RuneScape account.” Interestingly, the Court chose to treat the virtual property as the property of the victim, despite the fact that the Terms and Conditions of Runescape specifically states that all IP rights in game characters, items, and accounts are the property of Jagex Game Studios (the developer and publisher of Runescape) and the player only has a license to use this property.

Could this ever happen in the United States? On one hand, Mia Consalvo, then an associate professor at Ohio University, said that government will be slow to accommodate gamers’ needs for protection, because most people are still unable to relate to the situations that MMO gamers experience. An example of this opinion can be found in the comments of United Kingdom solicitor Therese Wallin. In a piece commenting on the Netherlands case, she stated that the victim of a theft of virtual property would suffer no loss if someone stole the equipment that the victim acquired in-game, since the equipment had only been acquired by the victim’s “waste of time” in playing the game. However, Wallin left open the possibility that if the victim had paid for the goods, that would create the requisite value. Wallin’s narrow reading of theft and virtual goods relies on conceptions of value that are informed by society as a whole, and simply cannot accept a gamer’s own conception of the value of time.

On the other hand, Joshua Fairfield, an associate professor of law at Washington and Lee University School of Law, said “it’s just a matter of time before the United States [prosecutes virtual thieves].” As opposed to Wallin, a more gamer-friendly viewpoint has been espoused, coincidentally, in the Netherlands. Arno Lodder, a professor of internet law in Amsterdam whose work was referred to in the Netherlands Attorney General’s opinion in the case above, recognizes that while the player may have only a license to use the virtual item, a theft in the broadest sense still takes place when the unauthorized transfer of property occurs. This transfer deprives the gamer of something of value, which was recognized by both the victim and the thief, which is what theft is at its core. This broad reading of theft and the value of virtual goods espoused by the Supreme Court of the Netherlands and Professor Lodder are what United States courts will need to adopt if gamers’ needs for protection are to be satisfied.

A quick search shows that V-22, UH-1Y, and AH-1Z are all federal trademarks (Registration #’s 3063307, 2908650 and 2928806) owned by Textron (the “Trademarks”). Therefore, use of these Trademarks on a similar product which may cause consumer confusion may qualify as an infringement of Textron’s rights. In BF3, these Trademarks are used directly in connection with the Helicopter’s virtual depiction. Usually, Textron has the burden to show that there is consumer confusion and would do so by applying the factors for the likelihood of confusion (which varies throughout each federal circuit).

However, this is a complaint for declaratory relief. EA is asking the Court to affirm EA’s assertion that the use of the Trademarks in BF3 constitutes nominative fair use and, therefore, there is no need to go through infringement litigation. The doctrine of nominal fair use allows EA to use the Trademarks to identify the Helicopters without being subject to liability for infringement. Unfortunately, there is disagreement between the federal circuits on which standard to use when a party claims the doctrine of nominal fair use. Some circuits, including the Third-Circuit, believe that Textron would have to satisfy the factors for likelihood of confusion prior to going through a nominal fair use analysis. However, the Ninth Circuit, the circuit in which this case is being tried in, sees nominative fair use as a modification to the likelihood of confusion analysis of Textron’s infringement claim. Nominative fair use appears to be EA’s only counter regarding trademark liability because other methods of challenging Textron, including cancellation of the Trademarks, is not feasible. The Trademarks are now incontestable and do not satisfy any the requirements for cancellation under 15 USC §1064(3).

Applying the Ninth-Circuit’s version of the nominative fair use doctrine to the case at hand, the doctrine is met when three elements are satisfied: 1) The Helicopter in question must be one not readily identifiable without use of the Trademark; 2) Only so much of the Trademark may be used as is reasonably necessary to identify the Helicopter; and 3) EA must do nothing that would, in conjunction with the Trademark, suggest sponsorship or endorsement by Textron.

Using known facts, it appears that EA will satisfy these elements. It is difficult to readily identify the Helicopters without use of its associated Trademark; for example, EA could have described the V-22 Osprey as the “multi-mission tilt-rotor military aircraft,” but this descriptive designation could portray a multitude of aircrafts. Secondly, EA used the Trademarks as it is reasonably necessary to identify the Helicopter; use of a fanciful logo would not qualify as reasonable. Lastly, EA used the trademarks to accurately describe the Helicopters in BF3 and none of EA’s uses suggest that Textron affiliated itself with EA/BF3 or endorsed the sale of BF3. Although BF3’s starting sequence does not disclaim any sponsorship, endorsement or affiliation with Textron, EA has not done anything to affirmatively suggest Textron’s sponsorship or endorsement of BF3.

Trade Dress can also be protected by federal law. The design of a product may acquire a distinctiveness which serves to identify the product with its manufacturer or source; and a design which acquires this secondary meaning is a trade dress which may not be used in a manner likely to cause confusion as to the origin, sponsorship, or approval of the Helicopters. Secondary meaning suggests that in the minds of the public, the primary significance of a product feature is to identify the source of the product, not the product itself. Assuming that Textron can prove that the Helicopter’s design has gained secondary meaning, the burden remains on Textron to show that the Helicopter designs are not functional. Functional designs cannot be protected by trade dress. Functionality exists if such design is essential to the use or purpose of the article or affects the cost or quality of the article.

Using the V-22 as an example, it is difficult to argue that the V-22’s design, including the tilt rotors, the twin tail vertical stabilizer, multi-function cockpit displays, loading ramp, and patented ice management system, tilt-rotor wing fold mechanism, tilt-rotor’s drive system,  and pylon conversion system are not functional; each design element allows it to perform to its desired specifications and improves the stability, pilots ergonomics, aerodynamics and performance of the Helicopter. Further, some design elements are patented, which provides strong evidence of functionality.  Unless Textron can prove that the Helicopter’s design are purely aesthetic, it appears that Textron will have a difficult time proving that the Helicopters are entitled to trade dress protection.

This is not the first time these parties had this dispute. As stated above, it seems that Textron has a difficult road ahead to show any form of trademark infringement within BF3. However, this case highlights Textron’s desire of raising revenue through a trademark licensing business. A victory by Textron could stipulate two things; EA will stop using the Trademarks and Helicopters in BF3, or BF3 will have the Trademarks and Helicopters available at an additional cost incurred ultimately by the consumer. Such costs could be in the form of additional downloadable content featuring officially licensed products or a higher initial purchase price of future released games. The gaming industry would then hit a cross-road in which it must decide whether a game which utilizes real vehicles, brands or items is economically feasible and, if so, not cost prohibitive. Clearly the appeal to drive a Ferrari in game is greater than that of a made up vehicle, but whether consumers are willing to pay the additional expense for a brand is an important consideration for publishers prior to paying for the licenses.

Companies like Budapest-based independent developer Zen Studios continue to bring the excitement of pinball out of the arcade and into the living room, pocket, and even the line at the grocery store. In a recent article by Caleb Bridge, “Zen Studios keeps pinball alive with licensed properties,” Neil Sorens, Creative Director of Zen Studios, reveals that each version of Zen Pinball requires a “slightly different release on each platform.” Reasons for this can stem from marketing costs to formatting issues; however, one thing is for certain: each version likely requires a new licensing agreement between the game and the console it’s released on.

A license is an agreement that gives the licensee (person getting the license) permission to use something that belongs to the licensor (person giving the license). This “something” can often be the right to use a physical product or technology. It can also be a contract to use a person or company’s identity. However, for each piece of intellectual property a game developer wishes to use, a separate license is needed. For example, if a game developer wishes to use the new Justin Beiber song in its racing game, that developer will have to obtain two licenses. One for the use of the songwriter’s copyright in the creative work, and one for the use of the sound recording owned by the record label. Likeweise, if the developer wishes to put the NASCAR logo into that same game, it will have to obtain a license from the logo’s trademark owners. When Zen Studios decided to create a pinball table featuring Marvel superheroes, a number of licenses were negotiated. Each license likely contained different terms.

According to a book written by Gregory Boyd and Brian Green called “Business & Legal Primer for Game Development,” the most common elements of a licensing agreement are the field of use, duration, geographic area, and the warranty and indemnity clauses. The field of use typically refers to ways in which a video game can be used. For example, it can bind the game developer from having its publisher only sell the game to certain distributors. The duration element usually defines how long the game developer will license its game to the console maker. The license might specify that the duration is automatically renewed after a certain period of time or that it is in existence forever. The geographic element refers to the geographic scope, or the areas where the video game will be sold. The warranty clause gives the console maker a guarantee that only the parties to the license can use the rights granted by it. The indemnity clause promises that if a video game developer or the console maker breaches the license, the breaching party will make the other party whole.

For Zen Studios, ensuring Zen Pinball as a staple game on as many video game consoles as possible has presented some challenges. Even for the most popular games, each console developer typically requires a separate license be drafted. This makes the negotiation process rigorous. A license agreement negotiated in a day could amount to one page with a lot of terms left undefined. However, in the case of Marvel, Zen Studios not only had to negotiate with Marvel’s lawyers, but they also had to negotiate with Marvel’s creative team as well. Being a small company can have its drawbacks. Most small video game developers have a hard time gaining leverage when initiating the terms of a development deal with makers of major video game platforms. Even beginning the negotiating process can take a substantial amount of time. Yet, as developers become more established, relationships do develop. Much like obtaining a high-score in pinball, licensing video games become easier with time and experience. Who knows? It may even become more fun than jean shopping with your mother.

The project was to create a dance-related video game that would enable players to perform along with the diva’s greatest hits – because there aren’t enough games like this already in existence. Beyoncé and Gate Five entered into this agreement in June 2010, and a lawsuit followed in April 2011. According to Gate Five founder Greg Easley in an interview with New York Magazine, Beyoncé’s abandonment forced them to lay off 70 employees and miss out on potential profits. In addition to losing their investment of more than $6 million into the project, Beyoncé’s decision essentially led to their cancelling the project all together.

Gate Five also claims that the songstress “double crossed” them over compensation issues when she made an “extortionate demand for entirely new compensation terms she wanted.”

Beyoncé’s attorneys countered that she was within her rights to exercise the termination provision of the contract after Gate Five was unable to fulfill contractual obligations to obtain $5 million of “committed financing” for the project.  Her attorneys asked the judge to take a plain reading of the contract and further argued that Gate Five had not met the mid-November 2010 deadline to finance the project. According to The Hollywood Reporter, however, Gate Five argued that the doctrine of estoppel applied because Gate Five had relied to its detriment on her assurances that the November deadline was immaterial. This doctrine applies to estop Beyoncé from changing her mind and seeking greater compensation because the change would be unfair to Gate Five. However, Gate Five relied to its detriment on a statement clearly contradicting their written agreement in which Beyoncé had already negotiated compensation terms and made it clear that she was committed to completing the business project. So shouldn’t Gate Give reap what they sow?

Justice Ramos gave no explanation as to why he denied her request to toss the suit, but the ruling has allowed Gate Five to seek major damages as well an injunction to prevent the singer from working on any future games. While she has no problem shaking her moves on stage, it seems like she’ll have a tough time shaking off this $100 million lawsuit. Maybe if Gate Five liked this deal so much, then they should have put a ring on it?

New York University has been an innovator in the latter category of education and games, recently creating an entire center focused on video game design and game creation.  A tour of the Center boasts a few classic arcade titles sitting in the main lobby for all to enjoy.  And while this might be a gamer’s dream, the real surprise lies in the Game Center’s Open Library.  The Library has over 1000 titles from every genre and platform, from the Atari and Nintendo to the PS3 and Xbox 360, available for members to play during the Center’s open hours.  It even has themed weeks, such as a Legend of Zelda exhibition and even a Horror Week, showcasing the best of the survival horror genre.  While the library is a great idea and amazing addition to the curriculum the Center offers, one must wonder if this gamer’s paradise possibly infringes some intellectual property rights?  While it is possible that there are patent issues (all the hardware used is most likely patented) as well as trademark issues (any list stating the titles the Open Library has is probably full of trademarked names), this article will focus on the copyright aspect of the Game Center.

Congress’ authority to regulate copyrights comes from the Constitution itself, which allows Congress “[t]o promote the progress of science and useful arts, by securing for limited time to authors and inventors the exclusive right to their respective writings and discoveries…” U.S. Const. Art. I, § 8, Cl. 8.  Even with this Constitutional mandate, it was not until the Copyright Act of 1976 that rights in published and unpublished works went almost exclusively federal, with Section 301 of the Act aimed at pre-empting various state laws.  As with patent rights, the Act grants no positive rights, but only the right to exclude others from doing a laundry list of things with the author’s works.  These rights are spelled out in 17 U.S.C. 106.  In general, the exclusive rights are those to reproduce, create derivative works, distribute, perform and display copyrighted works.  Currently, works created on or after January 1, 1978 entitle their owners to protection at the work’s creation and enduring for the life of the author plus 70 years after his death.

The Open Library is most likely open to liability for violating sections 4 and 5 of 17 U.S.C. 106, which are aimed at public performances and displays of copyrighted works, as  defined in Section 101 of the Copyright Act.  One violates the performance right if they perform the copyrighted work publicly without the owner’s consent.   For example, if you watch a movie or listen to a CD with friends and family at the park, while technically “public”, that does not constitute a “public performance” in violation of the Act.  Taking that same movie or CD and playing it for customers at a private movie theater without the copyright owners consent, on the other hand, does constitute a public performance, even if you restrict attendance.  Even non-profit viewings at a church or library can constitute infringement that could leave those who play the movies in hot water.  A “display” on the other hand refers to publicly showing a copy of a copyrighted work.  Thus, because displaying a work means showing a “copy” of it, the public display right only extends to copies.

While this may seem like an open and shut case against NYU, all is not lost.  The preamble language of a Section 106 also states that CR holder’s exclusive rights are subject to sections 107 through 122, which are not considered infringing uses.  Section 122, for example, states that secondary transmissions of local television programming by satellite are not infringements under the statute.  More important to this discussion, Section 107 deals with fair use, which states that copies made for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research do not infringe a copyright. While there are a few possible places for NYU to hang its hat on, its best bet might be the teaching exemption.  This not only allows for immunity from one possible infringement, but many, just in case NYU wishes to have multiple copies of a game for many students to play at the same time.

Clearly the teaching exemption is not a perfect fit, as one could argue that having a place for college students to play video games isn’t exactly what lawmakers thought of when they included “teaching” within the statute.  However, NYU could point to the educational mission of the center, and argue that even if it’s possible to see the Open Library alone as potentially infringing, taken as a whole, the program itself is an educational venture that can reasonably fit within the statute.  Also, NYU might point to language from Allen v. Academic Games League of America, 89 F.3d 614 (9th Cir. 1996), where the court had to figure out if a non-profit tournament of a copyright holder’s video games constituted a “public performance” under the Copyright Act.  Despite specific language in the statute that copyright holders had a right to exclude others from “playing” their works, the court held that the term “playing,” as used in the definition of protected performance, was not applicable to playing games. Furthermore, because the defendants didn’t make a profit from the plaintiff’s games, their use fell outside of the statute.  Id.  To add on to its educational use argument, NYU could say this is analogous to Allen because the Center isn’t making a profit by using the copyrighted material and people playing video games can’t constitute a public performance.

Either way, it’s unlikely the Nintendos and Sonys of the world would come after NYU for creating the Open Library.  The educational mission and free publicity the center brings to their games might be enough to stand as a deterrent.  “Also, with the educational system the way it is, think of the negative public relations that would backlash against any company trying to shut down a school’s ability to get people interested in games.”  And something tells me the NYU legal team may have done their homework on the subject before letting the school run with this.

Back in November 2010, Rose filed a lawsuit on behalf of himself and GNR against Activision., alleging fraud and breach of contract among other claims. At the heart of Rose’s $20 million dollar lawsuit is the allegation that Activision violated a deal not to include any images or avatars of Slash in Guitar Hero III in a way that would indicate an association between Slash and GNR. Specifically, Rose vehemently objected to the possibility of Slash being included anywhere near the game’s use of the GNR hit, “Welcome to the Jungle.” Nothing says let bygones be bygones quite like conditioning a company’s use of one of the band’s best songs on a promise not to include any imagery of the man who helped make the song the hit that it is. In any case, Rose made the condition in order to “avoid conflation of the images and reputations of [GNR] and Slash….” To be sure, requiring such a condition is perfectly within Rose’s rights as the majority owner of GNR’s business and assets; Rose’s permission, consent, and authority are required to use GNR intellectual property. According to the complaint, Activision agreed to the condition.

As fate would have it, Slash not only ended up on the cover of Guitar Hero III, but also on the virtual stage when the song “Welcome to the Jungle” is selected for play in the game. Rose believes it was Activision’s intention from the start to include Slash in the game: “[Activision] began spinning a web of lies and deception to conceal its true intentions to not only feature Slash and VR prominently in GH III but also promote the game by emphasizing and reinforcing an association between Slash and Guns N’ Roses and the band’s song ‘Welcome to the Jungle,’ ” the complaint states.

Originally scheduled for a January 23, 2012 trial date in Los Angeles Superior Court, the case has been tentatively rescheduled for a jury trial in May, just weeks after GNR’s induction into the Rock and Roll Hall of Fame. If the allegations in the complaint are true, Activision faces an uphill battle to avoid liability. However, given Guitar Hero III’s $830.9 million in retail sales as of March 2011, a settlement with Rose, or even a loss at trial for that matter, will not hurt Activision nearly as bad as if the game was unsuccessful. Thus, one wonders how much of that record-breaking success Activision owes to Slash’s inclusion in the game. Say, upwards of $20 million maybe?

Now some good news for GNR fans: it appears there is still hope for a GNR reunion with Slash. According to Dizzy Reed, current GNR keyboardist, all the original GNR members will be at the Hall of Fame induction ceremony. Beyond that, nobody can promise an affectionate on-stage embrace between Rose and Slash. However, do not be too surprised if Rose and Slash make amends, even with the Activision lawsuit trial date approaching; after all, lawsuits can just be about money sometimes…