Publicity Rights Of Dead People: Courtney Love Threatens Activision Over Kurt Cobain In Guitar Hero

from the welcome-to-the-digital-world dept

While we often talk about copyright, patents and trademarks as "intellectual property" (a misnomer, of course) there are some other related areas as well. One that has been growing in importance is the idea of "publicity rights" as a separate "right." The issue, of course, is usually about whether a company can use the likeness of someone for commercial purposes without their permission. But that issue is getting more and more complicated as technology gets better and better. In the last few decades, for example, there's been a growing trend to use famous dead people, such as John Wayne, Lucille Ball and Fred Astaire in commercials. But those mostly involved taking clips of those actors from existing films/TV and splicing them into a commercial (with permission from their estates). However, as some lawyers have been noting, with better and better digital technologies, this issue is becoming more important as it's now possible to digitally recreate someone for the purpose of film. Or, say, a video game. Apparently in Guitar Hero 5, singer Kurt Cobain has been... well... reanimated, and some find it rather distasteful (especially since he sings a bunch of songs you wouldn't expect him to sing).

Among those most upset? Cobain's widow, Courtney Love, who is threatening to sue Activision for breach of contract. Since she's claiming it's a breach of contract issue, there are (obviously) plenty of questions over what's in the actual contract. Still, like with patents and copyright, there is plenty of concern about how far publicity rights extend. In the Law.com article above, it notes that publicity rights didn't used to apply to the deceased, but that's changed. More troubling?

Initially, the right covered only a person's name and likeness. But courts expanded the protected "persona" to cover a variety of elements. Bette Midler and Tom Waits were allowed to pursue claims against advertisers featuring singers using similar vocal styles. Vanna White and George Wendt were allowed to sue companies using robots evoking their roles as the letter-turner and barfly in "Wheel of Fortune" and "Cheers" respectively. Lothar Motschenbacher was allowed to claim damages based on an advertiser's use of a distinctively ornamented racing car.

That certainly reflects the expansion of copyright and patents -- beginning narrowly focused and then expanding over time. I can certainly understand the desire for a "publicity right," but I wonder if it's not better handled through other laws -- such as trademark, fraud and contract law, rather than creating separate boundaries for "publicity rights." I can understand why Love is upset about the use of Cobain's image, but at some point you have to wonder whether it really makes sense to limit such uses. As the technology gets better and better, the legal questions are only going to get more complicated -- and, once again, we're likely to see the reach of such rights extended, perhaps in ways that make little sense.

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Is One Unauthorized Copy Of Guitar Hero Worth $7 Million?

from the copyright-law-insanity dept

JJ points us to a look at some of the sillier outcomes from the $1.92 million verdict against Jammie Thomas. Based on that, for example, sharing a single unauthorized copy of Guitar Hero 4 might put you at risk for nearly $7 million. The argument is that the game comes with 86 musical tracks, and thus a single unauthorized copy could put you at risk of infringing on the copyrights of each and every one of those songs. It's difficult to see how anyone could think this is a reasonable outcome (except for the paid mouthpieces, of course). It's yet another example of just how incredibly out of touch copyright law is these days with the way content is actually used. Copyright law was designed for situations involving commercial copying, not some kid sharing a video game with a friend. The fact that the results are so out of whack with any sort of sensible response to the actions of users should be a sign that it's time to scale back the law, not to make it even more strict as the entertainment industry insists.

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No, Guitar Hero Doesn't Infringe On Gibson's Patent

from the good-news dept

Last year, we wrote about yet another highly questionable patent lawsuit, involving famed guitar-maker, Gibson, claiming that Activision and pretty much every retailer who sold Guitar Hero violated its patent on "generating and controlling a simulated musical concert." The whole thing seemed pretty ridiculous (the patent itself seemed to describe something entirely different from what happens in Guitar Hero.

It took almost a year, but Colin Ross points out that, earlier this year, a California court didn't just toss out the lawsuit against Activision, but told Gibson that the lawsuit "bordered on the frivolous." This was especially true of Gibson's claim (I kid you not) that "the '405 Patent covers any system where a user controls something 'musical' with any device." Yes, really. The court wasted little time smacking down that idea:

By arguing that any sound made by any controller can potentially be musical, Gibson would have everything in the world -- from the buttons of a DVD remote, to a pencil tapping a table -- be an 'actual musical instrument' within the '405 Patent....

No reasonable person of ordinary skill in the relevant arts would interpret the '405 Patent as covering interactive video games.

The lawsuits against the retailers and other companies associated with the game are still ongoing, but hopefully will be tossed out on similar grounds shortly.

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MTV Supposedly Boycotting Warner Music Artists In Rock Band

from the nice-work,-Warner! dept

A bunch of folks have sent in an article from the latest issue of Wired Magazine about Warner Music's fight with the publishers of music video games, Rock Band and Guitar Hero. To be honest, the article doesn't cover much more ground than stories from last year, when Warner Music's Edgar Bronfman Jr. first demanded more money from the game publishers. But, it does include one juicy tidbit. After reposting Bronfman's silly quote demanding more money:

"In response, Rock Band publisher MTV Games is now boycotting Warner artists, according to a source close to the negotiations."

This is yet another example (in an increasingly long line) of how Warner Music's recent actions have done plenty to harm its artists. You may recall that a similarly ridiculous whine from Warner Music execs that YouTube wasn't paying enough money resulted in YouTube pulling all Warner Music videos from the site, pissing off many Warner Music artists. Other reports have noted that if musicians were blocked from getting their music in these video games, they might look to move to other labels as well.

And, of course, Warner Music's fight with the video game publishers is doubly stupid. Reports have shown that having your music in one of those games greatly increases sales of the music itself. So... the end result? Pissed off musicians who get less people hearing and interacting with and buying the music. It's amazing that Warner stays in business at all, with management foresight like that.

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Innovation And Invention In Virtual Rock Band Video Games

from the timing-matters dept

Reader David Kopp writes in to point us to a story in the Boston Globe that yet again highlights the difference between innovation and invention -- this time in the virtual musician video game space. While we've already seen that Konami has sued over the video game Rock Band, claiming that it had patented the concept of virtual musician games, the Globe story highlights a Massachusetts startup that appears to have come up with a similar idea much earlier. The game was slightly different, but had many of the same elements -- including a virtual guitar (that had actual strings in this case) and involved playing along with music on the screen. The band Aerosmith played a big part in the game, predating all the bands suddenly jumping on the Guitar Hero and Rock Band bandwagons of today.

The game was moderately successful, but was clearly ahead of its time in a variety of ways. The game was way too expensive, first of all, as the virtual guitar added an extra $100 to the $50 game price. The company also had trouble figuring out how to properly market the game, especially with the extra guitar. Also, since it was a PC game, it was less convenient than today's console games, which are mostly played around a big television. These were all issues that were later worked out, but not in time for the folks at Virtual Music Entertainment, who had already sold out for a decent, but not enormous, payout in 2000. Still, it's nice to see they're not bitter or threatening to sue:

"Whether they stole it or not, it was a good idea. They were at the right place at the right time, and they executed it really well."

And that's exactly the point. Executing and getting it right is difficult, but that's what the market is designed to reward, and that's what really drives innovation.

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Yes, Being In Rock Band Or Guitar Hero Helps Bands Sell More Music

from the among-other-things dept

Last week, we mentioned that it was silly for musicians (and labels) to complain about their music being in the video games Guitar Hero or Rock Band -- which some folks challenged in the comments. Yet, just in time, the Associated Press comes out with an article detailing how being in any of those games significantly increases sales of music, sometimes more than triple what they were prior to their inclusion in the games. Some musicians are also making a lot more due to image and likeness deals, but on the whole being in those games is a boost to traditional sales.

The article does note that the labels are upset that they don't think they're getting enough, because the labels, in their typical short-sighted view, only focus on how much they get directly from the game makers, whining that it's less than they would get from selling a bunch of albums. Well, duh. But, they conveniently leave out that being in the games increases sales of the albums too. It also notes that Edgar Bronfman's earlier whining is a bunch of meaningless fluff -- because if Bronfman ever stopped allowing Warner Music songs in those video games, a significant number of musicians would look to switch labels, since they actually recognize how valuable the games are. Bronfman's mistake is to think that it's the music that's valuable, but basically everyone else realizes he's got the equation backwards.

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How Many More Ways Can Axl Rose Piss Off Fans?

from the keep-trying dept

Axl Rose of Guns N' Roses has a funny way of trying to sell his album: his strategy seems to basically revolve around pissing off fans who want to interact with the music. There's been plenty of coverage over the arrest and subsequent guilty plea of a blogger who was actually doing a fantastic job of promoting the new album by leaking it online. Since then, Rose has apparently been unwilling to do much to actually promote the album, other than putting angry rants on various websites. The latest is that he's apparently threatening legal action against Activision for including some GNR songs in Guitar Hero. Apparently no one pointed out to Rose that having songs in Guitar Hero tends to help sell more albums. And, that would be useful for Rose right now, as reports are that his long-awaited album has been a tremendous flop. So, once again, it's worth pointing out that the last thing any musician wants to do these days is appear to be anti-fan.

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Music Games Drive Kids' Interest In Real Instruments

from the school-of-rock dept

A report from the UK says that 20 percent of the kids there that have played music video games like Guitar Hero and Rock Band have picked up real instruments because of the games. The author of the report says it shows that when music is presented to kids in new and compelling ways, it can get them interested in creating their own music. We'll note it's nice to see that kids getting excited by video games can have some positive effects and not only translate into violence, as one recent study said. It's also interesting to note that Gibson says it's getting a sales bump from the games, particularly for its iconic Les Paul guitar, after which one of the plastic axes in Guitar Hero is modeled. This is a little ironic, after Gibson wanted to extract some money from Activision by waving an unrelated patent in its face and trying to get the company to license it. This further illustrates to record companies how these games can add value to their content and serve to promote it, but sadly, you know that somehow that lesson will still be lost on the labels.

Carlo Longino is an expert at the Insight Community. To get insight and analysis from Carlo Longino and other experts on challenges your company faces, click here.

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Activision CEO Suggests Record Labels Should Be Paying To Get In Video Games

from the this-ought-to-be-fun dept

Remember a couple months ago, when Warner Music's Edgar Bronfman complained that the makers of video games like Guitar Hero and Rock Band should be paying more for the music they used? He claimed, incorrectly, that the games were "entirely dependent" on the record labels' content. That was wrong, and totally downplayed the fact that the video games were actually adding value to the music. Now it appears that the maker of Guitar Hero, Activision, is hitting back. The company's CEO is pointing out how much being in those games has helped bands, suggesting that its really the record labels that are getting too good of a deal:

"When you look at the impact [the game] can have on an Aerosmith, Van Halen or Metallica, it's really significant -- so much so that you sort of question whether or not, in the case of those kinds of products, you should be paying any money at all and whether it should be the reverse. The bulk of our consumers will tell you they're not purchasing the products based on the songs that are included, they're purchasing based on how fun the songs are to play when they're playing them."

He's exactly right. The content industry always seem to over estimate how much "value" the content provides and almost totally ignore the value provided by anyone else in the value chain. It's going to be interesting to see what happens over the next few months, but I would bet that the video game companies have the stronger hand here, and despite Bronfman's statements, the record labels really understand that.

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Warner Music Complains That Rock Band And Guitar Hero Need To Pay More For Music

from the are-they-serious? dept

And here they go again. Despite the fact that the games Guitar Hero and Rock Band have breathed new life into various musical acts and helped pump up sales of certain artists, the recording industry is starting to complain. It seems unable to recognize how something that promotes its music or makes that music more valuable is beneficial -- instead freaking out that it's somehow being ripped off. Proving, once again, that they overvalue content and undervalue the service that makes that content valuable, Warner Music's Edgar Bronfman is bitching and complaining that Rock Band and Guitar Hero aren't paying enough for music:

"The amount being paid to the music industry, even though their games are entirely dependent on the content we own and control, is far too small."

Fine. This is the point at which both of those video games should stop using any Warner Music content, and see how Bronfman feels when everyone else is jamming to content from his competitors, increasing the attention and sales that they get -- while Warner musicians are left out in the cold. Once again, we're seeing how Edgar Bronfman Jr.'s supposed epiphany about the digital age of music was no such thing.

The industry simply assumes that, if something makes use of their content, all of the value is in the content. That's incorrect. Yes, the content is a part of the value, but it's the game that's making that content valuable. This is the same thing that's been true of so many other services that the industry has freaked out about -- from Napster to YouTube to Seeqpod and many others. Until the recording industry recognizes that this isn't a zero sum game, and someone out there promoting your content is helping to make it more valuable, the industry is never going to figure out how to really adapt.

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Gibson Sues More Than Just Activision Over Virtual Music Concert Patent

from the who-else-can-we-sue dept

Remember how Activision had preemptively sued Gibson for a declaratory judgment that it didn't infringe on a really questionable patent concerning a computerized guitar for a "virtual" concert? Well, Gibson has now struck back, and it's not just suing Activision, but almost all the retailers who sell it as well, including Wal-Mart, Target, Kmart, Amazon.com, Toys 'R' Us and GameStop. The idea, clearly, is to have those retailers put pressure on Activision. Update: Wired reports that the lawsuit also covers a bunch of other companies. Basically, Gibson is suing anyone even remotely connected to video games that involve fake guitars.

Of course, there are all sorts of questionable things about this lawsuit. As we pointed out when Activision first sued, Gibson's patent doesn't seem similar to "Guitar Hero" at all. It talks about playing a real concert, with a real guitar (with strings) attached to a head mounted display. Also, as Activision points out, Gibson didn't care about the patent as long as Activision and Gibson had a marketing agreement. They only started calling for patent infringement after the marketing agreement ended. Finally, suing retailers for selling the game is quite sketchy. In fact, the Supreme Court just heard a case looking at whether or not that was legit, and the Justices sounded quite skeptical. Gibson is clearly posturing to try to push for a settlement -- and in the process, showing yet another way to abuse the patent system.

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Activision Sues Gibson In Response To Claims That 'Guitar Hero' Violates Patent

from the it's-all-fun-and-games-until-someone-digs-up-a-patent dept

And now bogus patent threats are finding their way into the video game world, as Activision has filed for a declaratory judgment that it doesn't infringe on a patent owned by Gibson, the well-known guitar company. It appears that Gibson owns a patent on "generating and controlling a simulated musical concert." Reading through the patent, it appears to be quite different than Activision's game. First off, the patent seems to clearly indicate that the instrument in question is a guitar, not the faux guitar used in "Guitar Hero." Also, the patent really does seem to be about participating in a virtual concert by adding the guitar part, rather than about pushing buttons in a game. Finally, the patent also includes the small detail that the participating in the virtual concert also involves a "head-mounted 3D display." I'm not aware of too many people playing "Guitar Hero" with one of those. Either way, Gibson approached Activision about licensing the patent, and rather than finding itself involved in a patent lawsuit in East Texas, Activision took charge and filed a suit against Gibson proactively, looking for a declaratory judgment that "Guitar Hero" does not violate the patent in question. In the meantime, if Gibson is really so concerned, why not do a deal with Activision to get them to offer replicas of Gibson's classic guitars as an upsell offering for the game's fans?

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Guitar Hero Gets To Rock On For Now

from the can't-shut-me-down dept

Last month we wrote about how the 80s rock band the Romantics was suing Activision for a version of its video game Guitar Hero. That game used a cover of a Romantics hit, which was properly licensed. However, the Romantics claimed that the cover was too good and too close to the original and wanted to be paid for a full performance license, rather than just for the cover. Otherwise, they wanted to halt sales of the game. Luckily, a judge has turned down their request for a summary judgment, noting that an injunction right before the holidays would have a profound impact on Activision's sales of the game. The judge also noted that the band did not "show a substantial likelihood of prevailing on the merits of the case." Apparently, the judge was less-than-impressed by the fact that the band's own lawyer admitted that this was "all about the money."

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The Romantics Suing Over Cover Version Used In Guitar Hero: Apparently, It's Too Good A Cover

from the copyright-insanity dept

Jennifer was the first of a few folks to alert us to the latest ridiculous copyright lawsuit. It appears that the 80s band The Romantics is suing Activision for the cover version of its song, "What I Like About You," being used in the Guitar Hero Encore: Rocks the 80s game released this past summer. The lawsuit is not because the song wasn't properly licensed. Activision properly licensed the song so it could have a band cover the song and use the cover in the game. The problem is that the cover band was too good, according to The Romantics. Yes, the band is complaining that the cover is so accurate it sounds just like the original Romantics' version, and therefore, is infringing on the band's rights. This is so ridiculous that it's worth repeating the details once again: The band agreed to a license allowing Activision to use a cover version of its song -- and then sued because the cover version was too similar to the original. The band is now claiming that Activision should have paid different (more expensive) royalties to use the original master recording. As ridiculous as this sounds, the band may actually have some (equally ridiculous) precedents to back it up. Other musicians have sued when properly licensed covers were used in commercials, claiming that even though the songs used were covers, they sounded too similar and people might assume that the musician endorsed the product in the commercials. In this case, though, there really isn't any question of endorsement -- and, honestly, the Romantics should probably be thrilled that anyone still pays any attention to the band at all, rather than trying to ban the sale of the new game (which, yes, it's trying to do).

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