Courtney Love v. Guitar Hero: Argument 101

If you haven’t been paying close attention the dispute between Courtney Love and Guitar Hero’s maker, Activision, it’s escalating into a nuclear war. Courtney Love (widow of the late Kurt Cobain), coupled with the verbal dislike from Nirvana’s former band mates Novoselic and Grohl, are livid and threatening lawsuits against Activision. In the game, Coban is an unlockable avatar, and can be used to perform Nirvana songs along with countless others including music by Bon Jovi and Bush. This has Nirvana fans, the always controversial Love, and grudge music lovers going ballistic. Many consider it to be disrespectful to the late Cobain, fraudulent, and even a dilution of the Nirvana brand. These arguments are loosely valid. However people are quickly venturing down a verbal mud slinging path that legally they know nothing about- intellectual property.

This entire dispute represents the nuts and bolts of intellectual property law (aka: IP), especially IP in the entertainment industry. This is an extremely complex and vast topic. Here is quick legal rundown in order to help people better understand the battle going on, as defined by the law. The 3 main categories of IP are (1) patent, (2) copyright, and (3) trademarks. Courtney Love’s argument is a violation of “right of publicity” which is a sub-category in trademarks. Legally speaking a celebrity has the ability to exploit the commercial value of one’s property. Love being the widow of Cobain now possesses this right to his identity and commercial use. The right is recognized because of the investment that a person (or group) makes in developing a public image. Soooo legally speaking, the possessor of the identity, rightfully gets to licenses out the right to use the image, likeness, identity, or expression much like someone would license out their music, movie, etc… The Guitar Hero dispute is fairly black & white about who has the right of publicity to Kurt Cobains likeness- Courtney Love, however this case begins to get grey with the alleged violations.

According to Trademark and Unfair Competition Law 4th edition, an individual has a valid claim towards a right of publicity violation by showing 4 things.
(1) That the Defendant used his name or likeness.
(2) That the appropriation of his name or likeness was to the Defendants advantage, commercially or otherwise.
(3) That he did not consent to this use.
(4) That he suffered an “injury” as a result.

This whole dispute, no matter how pissed Courtney Love is and how angry the former band is, will hinge on #3. According to Activision: "Guitar Hero secured the necessary licensing rights from the Cobain estate in a written agreement signed by Courtney Love to use Kurt Cobain’s likeness as a fully playable character in Guitar Hero 5." IF true, the language in the contract as to what Love agreed to “Cobains likeness as a fully playable character” will be the swing vote. If this wasn’t fully defined in the contract as to what a “playable character” is, Love is either a victim of being an idiot or having a bad lawyer. If the contract defines Cobain as a fully playable character of Nirvana songs, than Activision will be in violation and will immediately have to fix the game.

Many could care less about the legal ramifications of this potential explosion. It is interesting however because it can open the floodgates for violation allegations. For example: The Aerosmith avatars, or Beatles avatars could scream violation because they didn’t feel the character fully represented their true artistic talent and therefore caused a drop in album sales. This is slippery people. My gut, Courtney Love has nothing here. If so, look for more lawsuits from the Grimm Reaper banging drums, and the hybrid avatar of Slash and the Playboy Bunny suing for millions on the bass!