If you've been following the gaming press lately, you've no doubt heard about Courtney Love's twitter threats to sue Activision over the use of Kurt Cobain's image in Guitar Hero 5. Basically, you can unlock the Nirvana frontman as a playable character and use him to sing any song in the game, including tunes by Arctic Monkeys, Garbage and Jon Bon Jovi. Courtney Love does not approve.
I spoke with Wesley Johnson, a Chicago intellectual property lawyer, avid gamer and my brother, to see what kind of chance Love's case might stand and to discuss the finer points of the law as it applies to the possible defamation of dead rock stars.
G4: So, Counselor, what's your opinion of this case overall?
Wesley Johnson, Esq.: My general take on it is that Courtney Love is nuts. She doesn’t seem to know what she’s talking about. She obviously signed over the rights to put Kurt Cobain in this game, and it looks like the only clause in the contract she can stand behind is that he’s not going to be portrayed in any way that denigrates his image. But what does that mean? Obviously they couldn’t put him in a Nazi uniform and have him shoot schoolchildren, but he’s singing songs. I don’t think they have a lot to stand on there.
G4: Have you seen the video?
Johnson: I’m watching it now… I like that “Yeah, boyeee" thing where Kurt sings Flava Flav.
G4: You can play as Johnny Cash, too.
Johnson: Maybe there’s a lawsuit in the offing there, too. But it's not like the game is really doing it. It’s really the user who’s having Kurt Cobain sing those songs. It doesn’t look like the animations were put in just for Kurt Cobain. It looks like those are the animations for anyone doing the Jon Bon Jovi song, whether it’s Kurt Cobain or Johnny Cash, they’d do the same things.
G4: So you don’t think there’s any merit to what Love is claiming?
Johnson: I haven’t read the contract, but reading between the lines, there’s a couple things going on: Celebrities, even dead celebrities, have a right of publicity in their image. California has a law that extends celebrity likeness protection for 70 years after the celebrity’s death: The California Celebrities Rights Act. That’s just one example of a law that protects celebrity images even after they’re dead. So Activision couldn’t use his image, for purposes of a game, without a contract in place. Obviously they had a contract in place, so reading between the lines, there’s probably a clause in the contract that allows them to use his likeness in the game in any way that they wanted, with a provision that it couldn’t be used in a way that denigrates his image. The term “denigrate” was probably left vague and undefined by both parties.
Based on what I’ve read, it seems that Love obviously signed off on at least the image: The clothes he’s wearing, the haircut, so it’s probably going to be a factual defense that Activision is going to have, that she was aware of everything, and approved of it. She was probably aware of the game, so they can show that she knew what the game was about, and she knew what the image was going to be. So that’s probably one of the defenses that Activision is going to raise, that she was completely aware that his character was going to be used this way.
The other point is whether or not his image is denigrated.
G4: Let me play devil’s advocate: What if Love says: “Kurt Cobain’s whole career and legacy was dependent upon him not doing things like singing Bon Jovi songs, and that Activision in buying the likeness of Kurt Cobain should have known that putting him on stage singing "You Give Love a Bad Name" denigrates him. Makes him look like a fool.
Johnson: Wait, so the idea is that singing anyone else’s song denigrates him?
G4: No. But specific songs.
Johnson: What’s the criteria for which specific songs?
G4: Bon Jovi is out.
G4: Because Bon Jovi is crazy lame.
Johnson: (laughter) And why is that? Because you have the opinion that Kurt Cobain didn’t like that song?
Johnson: That would be difficult to prove in any case, but in it’s especially difficult to prove here, in that Love did approve the use of the image in the same game as that song. The analogy I would use is that it's like appearing in a concert with Bon Jovi as the opening act.
Here’s the specific meaning of “denigrate” in a defamation analysis known "libel per se," which is similar to what we’re talking about here. "Broadcast or written publication of a false statement of another that accuses him or her of a crime, immoral acts, inability to perform his or her profession, having a loathsome disease, or dishonesty in business."
G4: Bon Jovi is a loathsome disease.
Johnson: (Laughter.) Inability to perform his or her profession is libel per se. You could say, “Oh, he’s unable to be a rock star because he’s doing all this rap stuff and Stevie Wonder, it makes him look like a clown.” It would be a tough case, but I think this is what they’d have to hang their hat on. That it’s the same thing as libel per se. It’s a high standard. A difficult standard to meet.
It gets way out of fact and into opinion. You’d have to say, “Oh, that song is bad. Kurt Cobain would never sing it.” But how do I know Kurt Cobain didn’t like Stevie Wonder? How do I know that if his career continued he wouldn’t have done some funk or rap or something? It’s a tough case.
If you were really going to win this you’d have to show Kurt Cobain doing something terrible, shooting up, killing someone…
G4: Maybe shooting up wouldn’t do it…
Johnson: Well, if he already has that image…
G4: What would denigrate his image?
Johnson: Maybe if you showed him his with a guitar in his hands and he obviously couldn’t play it. Or he looked retarded or something.
G4: He looks pretty retarded in that YouTube video. It doesn’t make it look like he’s not a musician, but it makes him look like a different kind of musician than he was.
Johnson: You’d have to make it look like he was unable to perform his profession. I don’t know. If you portrayed him as a criminal or something, or some other way…
G4: Or that he had a loathsome disease.
Johnson: Yes. A loathsome disease. I love that one
G4: What if all the rock and roll fans on the internet agree that Kurt Cobain is being denigrated here?
Johnson: Do people think that it’s that awful?
G4: To tell the truth, it seems like people think it says more about Activision than it does about Kurt Cobain.
Johnson: Do people who play the game get turned off because Kurt Cobain can do those things?
G4: A little. It’s a small detail, but if you get enough of those details wrong, people will say, “that game is lame. I think I’ll play Rock Band.”
Johnson: That doesn’t seem to denigrate Kurt Cobain’s image as much as Activision's.
G4: I think her lawyers are going to talk her out of filing a lawsuit anyway.
Johnson: You never know. Maybe Activision will say, “Regardless of the validity of this lawsuit, We have done wrong by Kurt Cobain’s image.” I know that I would want to play this game more, knowing that I could unlock Kurt Cobain’s image and make him do other songs! That would make me like it a lot more.
G4: It is pretty funny. But if I was the kind of person who took this seriously, I’d be more upset by Johnny Cash being in the game. Johnny Cash was more badass. He'd never sing A.F.I. or Sunny Day Real Estate.
Johnson: For all we know, the controversy over Kurt Cobain is going to notify the Cash estate as to what’s going on with this… or maybe they’ll think Johnny Cash had more of a sense of humor than Kurt Cobain.
G4: On a totally unrelated note, I actually paid cash for the last Leisure Suit Larry game. Can I sue the makers of that game for providing me with such an unenjoyable gaming experience?
Johnson: Did the game work?
Johnson: Then probably not. There’s no way you can sue them because you didn’t like the game.
G4: Can I sue for the time that I played it back?
Johnson: I don’t think so.
G4: Well, shoot. Thanks for clearing up these important issues, though!
Johnson: No problem!