Activision countersues No Doubt in 'Band Hero' flap

By Eriq Gardner

Activision Publishing, maker of the hit videogame "Band Hero," is standing up to the band No Doubt with a new countersuit alleging breach of contract.

In an answer and counterclaim filed last week, Activision accuses the band of failing to do its due diligence on the videogame before signing away its digital likeness, breaching a contract to provide marketing and promotion to the game, and being unjustly enriched by their inclusion in the game.

Last month, No Doubt set the stage for a very interesting court fight with Activision. 

The band was unhappy that "Band Hero" allowed game-players to manipulate avatars to engage in unapproved acts, from having a Gwen Stefani virtual character perform the Rolling Stone's "Honky Tonk Woman" in a male voice to making band members do unrealistic dance moves. In a claim in federal court, the band asserted that its agreement with Activision granting publicity rights didn't cover these unanticipated features.

The game publisher admits that "Band Hero" allows players to "unlock" in-game characters in a variety of ways, but it says these features have been "publicly known" since the "Guitar Hero" franchise first appeared in 2005. The band participated in the motion-capture production process for the game, says Activision. 

So who is breaching the contract?

Activision says it's No Doubt, by failing to live up to contractual obligations to promote the game. Since the band is allegedly failing in that regard, Activision believes that No Doubt has "obtained benefits from its inclusion" in the game and wants the band to disgorge all payments and pay damages.