One would think that with Activision’s announcement last month of its decision to terminate the once hugely successful game franchise, Guitar Hero, the game would only be referenced from now on as a thing of the past, a once popular breed of music-based video games that changed the landscape of interactive entertainment.  Yet, today the brand is still making headlines, but not in a good way.  The video game and legal communities are now confronted with the always controversial issue of unauthorized use of avatars in games.

No Doubt, a mainstream band that gained prominence in the late 90s and early 2000s, has brought legal action against Activision for unauthorized use of avatars depicting the band’s members in Band Hero, a spin-off of Guitar Hero.  According to the members of No Doubt, the band licensed to Activision their likenesses in the form of avatars to be used only in connection with No Doubt songs.  They contend that they never gave Activision permission to use these avatars when singing other songs.  Activision has counterclaimed with breach of contract and unjust enrichment, citing that it was No Doubt’s fault in not inquiring on how the avatars would be used.  They could have easily objected to the use after reasonable due diligence.  Activision attempted to argue that freedom of speech protected its use of the avatars, but last year an L.A. County Superior Court judge ruled that this could not fall within First Amendment protection and he failed to dismiss the suit.  A California Appellate Court recently affirmed this decision.

This issue of unauthorized use of avatars first materialized several years ago when Activision used the likeness of Kurt Cobain in Guitar Hero 5.  Courtney Love, Cobain’s former wife, and members of Nirvana expressed outrage when Cobain was used as an avatar to perform songs other than those by the band.  Videos of a rapping Cobain avatar hit Youtube in a comical flurry.  As Dave Grohl and Krist Novoselic explained, “It’s hard to watch an image of Kurt pantomiming other artists’ music alongside cartoon characters. Kurt Cobain wrote songs that hold a lot of meaning to people all over the world. We feel he deserves better.”  Respect for the now deceased musician and his legacy warrants a certain kind of protection over his image and reputation.  This has proliferated into another $20 million suit brought against Activision by Guns N’ Roses Axl Rose.  Rose, who negotiated the deal, only agreed to the use of “Welcome to the Jungle” in Guitar Hero III: Legends of Rock, but Activision improperly designed a character for the game that resembled former guitarist Slash.

Since there is “no doubt” that No Doubt can proceed with its breach of contract and fraudulent inducement claims, we are left to wonder: who should win? Well, Activision was in negotiations with the band and its legal team prior to creation of this project.  Both sides understood that avatars would be used.  Is it really that surprising that the avatars would have been used in other songs, especially since the game spans across different music styles and genres in a light, cartoonish way? Mixing and matching artists and tracks seemed inevitable.  Maybe it was the fault of No Doubt’s lawyers in not properly predicting and resolving this issue from the start.  Activision could also contend that No Doubt was not actually harmed here.  Maybe the avatars are even advantageous in generating continued interest in No Doubt music and furthering the band’s popularity.

Yet, it cannot be denied that No Doubt clearly has rights to its visual representations in both the form of copyright and right of publicity.  The members can control how their likenesses are used and disseminated in video games.  Gwen Stefani can make a strong argument that she never agreed for her avatar to be used in performing other tracks like “Honky Tonk Women” by the Rolling Stones.  Perhaps Stefani does not wish to be associated with a male-oriented song about having illicit sex with prostitutes.  Furthermore, such subject matter could effectively tarnish her reputation and persona.  Even the L.A. County Superior Court went so far as to say the likenesses of the band were transformed into a “virtual karaoke circus act” in which the playable avatars could be used in over 60 songs.

Nonetheless, these varying arguments all lead to one inescapable conclusion: Activision will most likely lose this suit.  Activision breached its commitments within the No Doubt contract and attempted to monetize the value and market appeal of the game by trading in on the likenesses of the band.  What situations like these teach the gaming industry is that avatars have become a new 21^st century form of legal property that cannot be exploited for material gain.