Fall 2010 open memo assignment no doubt v. activision right of publicity california answer by...

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QUINN EMANUEL URQUHART OLIVER & HEDGES, LLPMichael T. Zeller Bar o. 196417} ^ _n^.ichaelzeller@quznnemanue^l . com ^ '-^.

8b5 South Figueroa Street , 10t FloorLos Angeles , California 90017-2543 ^"-`"-` ' 1Telephone : 213 443-3000Facsimile : ^213^ 443-3100 ^^-': ; ^.;,. -,wAttorneys for Defendant and ^ `'';; ^?Counterclaimant ^ ^-'^ --Activision Publishing , Inc. I T''1 `^

UNITED STATES DISTRICT COURT

CENTRAL, DISTRICT OF CALIFORNIA

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WESTERN D V N 3^`^^.

^.;^NO DOUBT, a California Partnership ; C O. ^ ^;^'^^^:^^ ^

Plaintiff and Counter- ACTIVxSION ' S ANSWER ANDdefendant , COUNTERCLAIIV,[S; AND

vs.

ACTNISION PUBLISHING, INC., aDelarnrare Corporation,

Defendant and Counter-claimant.

DEMAND FOR JURY TRIAL

Trial Date : None Set

AGTIVISTON 'S ANSWER AND COUNTERCLAIMS ; AND DEMAND FOR NRY TRIAL

Case 2:09-cv-08872-SVW-VBK Document 3 Filed 12/03/2009 of 25

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Defendant and Counterclaimant Activision Publishing, lnc.

("Activision") hereby answers Plaintiff s Complaint as follows:

1. Answering Paragraph 1 of the Complaint, Activision admits that

Plaintiff has purported to sue for injunctive and other relief against the "Band Hero"

videogame that is part of Activision's flagship "Guitar Hero" videogame franchise,

denies the truth of the remaining allegations set forth in Paragraph 1 and specifically

denies any and all allegations of wrongdoing against Activision.


it created and owns the "Band Hero" videogame that is part of Activision's flagship

"Guitar Hero" videogame franchise, admits that Plaintiffs members' in-game

characters {or "avatars"} which had been approved by Plaintiff are in "Band Hero"

'pursuant to a fully paid license agreement with Plaintiff, admits that certain users of

"Band Hero" are able to "unlock" its members' in-game characters and can then

choose to play songs performed by other artists using "unlocked" characters as part

of their game-play, denies the truth of the remaining allegations set forth in

Paragraph 2 and specifically denies any and all allegations of wrongdoing against

Activision.


it created and owns the "Band Hero" videogame that is part of Activision's flagship

"Guitar Hero" videogame franchise, admits that avatars of Plaintiffs members

which had been approved by Plaintiff are in "Band Hero" pursuant to a fully paid

license agreement with Plaintiff, admits that certain users of "Band Hero" are able to

"unlock" its members' in-game characters and then can choose to play songs

performed by other artists using "unlocked" characters as part of the game-play,

admits that its copyright protected "Band Hero" videogame and its contents are

highly transformative, denies the truth of the remaining allegations set forth in

Paragraph 3 and specifically denies any and all allegations of wrongdoing against

Activision." L-

ACTNISION'SANSWER AND COUNTERCLAIMS; AND DEMAND FOR JURY TRIAL


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4. Answering Paragraph 4 of the Complaint, Activision denies the

truth of the allegations set forth therein and specif tally denies any and all

allegations of wrongdoing against Activision.

5. Answering Paragraph 5 of the Complaint, Activision admits the

allegations set forth therein.





$. Answering Paragraph 8 of the Complaint, Activision denies that

Plaintiff did not authorize or license the in-game characters of its members, states

that the parties' Agreement speaks for itself, denies any and all allegations of

wrongdoing against Activision and states that it is without knowledge or

^ information Buff cient to form a belief as to the truth of the remaining allegations

^ therein and, on that basis, denies them.


it is a videogame publisher, admits that it is the creator and owner of the "Band

Hero" videogame, admits that its "Guitar Hero" franchise has been among the top

selling videogames, states that it has sold to date over 40 million units of "Guitar

Hero" videogames with revenues in excess of $2 billion, admits that the videogame

allows players to simulate performing in a rock band in time with popular songs

with aguitar-shaped controller and denies the truth of the remaining allegations in

Paragraph 9.

10. Answering Paragraph 10 of the Complaint, Activision admits

that since the first version of the "Guitar Hero" videogames, going back as early as

2005, players have been able to "unlock" in-game characters in a variety of ways,

whereby users may use those in-game characters to play songs they choose once

-_^-ACTIVISIONS ANSV^R AND COUNTERCIvAIMS; AND DEMAND FOR JURY TRIAL


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they are "unlocked" as part of the game-play, and denies the truth of the remaining

allegations in Paragraph 10.


that the parties entered in a Professional Services and Character License Agreement

dated as of May 21, 2009, a copy of which is attached hereto as Exhibit 1, states that

the Agreement speaks for itself, denies the truth of the remaining allegations set

forth in Paragraph 11 and specifically denies any and all allegations of wrongdoing

against Activision.






^ against Activision.






against Activision.


that so their likenesses could be used to create their in-game characters, Plaintiffs

members agreed to participate, and did participate, in "photographing and scanning

Artist's likeness, and capturing Artist's motion-capture data" pursuant to the

Professional Services and Character License Agreement dated as of May 21, 2009, a

copy of which is attached hereto as Exhibit 1, and denies the truth of the remaining

allegations set forth in Paragraph 14.

AGTIVISION'S ANSWER AND COUNTERCLAIMS; AND DEMAND FOR JURY TRIAL


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dated as of May 2I, 2009, a copy of which is attached hereto as Exhibit 1, states that

the Agreement speaks for itself and denies the truth of the remaining allegations set

forth in Paragraph 1 S.


that Plaintiff s members' avatars which had been approved by Plaintiff are in "Band

Hero" pursuant to a fully paid license agreement with Plaintiff, admits that certain

users of "Band Hero" are able to "unlock" its members' in-game characters and then

can choose to play songs performed by other artists using "unlocked" characters and

denies the truth of the remaining allegations set forth in Paragraph 16.


that avatars of Plaintiffs members which had been approved by Plaintiff are in

"Band hero" pursuant to a fully paid license agreement with Plaintiff, admits that

certain users of "Band Hero " are able to "unlock" its members' in -game characters

and then can choose to play songs performed by other artists using "unlocked"

characters and denies the truth of the remaining allegations set forth in Paragraph

17.


that avatars of Plaintiffs members which had been approved by PIaintiff are in

"Band Hero" pursuant to a license agreement with Plaintiff, admits that certain users

of "Band Hero" are able to "unlock" its members' in-game characters and then can

choose to play songs performed by other artists using "unlocked" characters and



that avatars of Plaintiffs members which had been approved by Plaintiff are in

"Band Hero" pursuant to a license agreement with Plaintiff, admits that certain users

of "Band Hero" are able to "unlock" its members' in-game characters and then can-_^- _

ACTNISION'S ANSWER AND COUNTERCLAIMS; AND DEMAND FOR JURY TRIAL


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choose to play songs performed by other artists using "unlocked" characters and



that it has been publicly known that certain users of "Guitar Hero" videogames are

able to "unlock" in-game characters and then can choose to play songs performed by

other artists using "unlocked" characters as part of the game-play, states that the

Agreement between the parties speaks for itself, and denies the truth of the

remaining allegations set forth in Paragraph 20.


allegations set forth i^ Paragraph 21.


that Plaintiff purports to quote certain lyrics from the song "Honky Tonk Women,"

admits that Plaintiffs members avatars which had been approved by Plaintiff are in

"Band Hero" pursuant to a fully paid license agreement with Plaintiff, admits that

certain users of "Band Hero" are able to "unlock" its members' in-game characters

and then can choose to play songs performed by other artists using "unlocked"

characters, admits that "Honky Tonk Women" is a song that is included in "Band

Hero," states that it is without knowledge or information sufficient to form a belief

as to the truth of the allegations whether Plaintiffs member's are "avid fans" of the

Rolling Stones, and denies the truth of the remaining allegations set forth in

Paragraph 22.


that Plaintiff purports to quote certain lyrics from the song "Just A Girl," admits that

Plaintiffs members avatars which had been approved by Plaintiff are in "Band

Hero" pursuant to a fully paid license agreement with Plaintiff, admits that certain

users of "Band Hero" are able to "unlock" its members' in-game characters and then

can choose to play songs by Plaintiff and others using "unlocked" characters, admits

that "Just a Girl" is a song that is included in "Band Hero," states that it is without

ACTIVIBION'S ANSWER AND COUNTERCLAIMS; AND DEMAND FOR NRY TRIAL


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knowledge or information sufficient to form a belief as to the truth of the allegations

relating to Tony Kanal 's vocal duties, and denies the truth of the remaining


24. Answering Paragraph 24 of the Complaint , Activision denies the

truth of the allegations set forth therein.

25. Answering Paragraph 25 of the Complaint , Activision admits

that although it is possible to program a videogame whereby particular in-game

characters can only be selected when certain songs are played , Plaintiff first

requested this only after the "Band Hero" programming was finalized , had been

submitted to alI of the U.S . console manufacturers for approval and had been

approved for manufacture by most console manufacturers and denies the truth of the

remaining allegations set forth in Paragraph 25.


^ truth of the allegations therein.

FIRST CAUSE OF ACTION

27. Answering Paragraph 27 of the Complaint , Activision

incorporates by reference Paragraphs 1 through 2b of its Answer, as though fully set

forth herein.


truth of the allegations therein . By way of further answer, Activision states that it

has been publicly known that certain users of "Guitar Hero" videogames are able to

"unlock" in-game characters and then can choose to play songs performed by other

artists using "unlocked" characters.


truth of the allegations therein . By way of further answer , Activision states that it



artists using "unlocked" characters.^ 1 -

ACTIVISION'S ANSWER AND COUNTERCLAIMS; AND DEMAND FOR JURY TRIAL


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truth of the allegations therein. By way of further answer, Activision states that it















truth of the allegations therein and specifically denies that Plaintiff is entitled to any

damages or any other relief



^ damages or any other relief

SECOND CAUSE OF ACTION

35. Answering Paragraph 35 of the Complaint, Activision

incorporates by reference Paragraphs 1 through 26 and Paragraphs 28 through 34 of

its Answer, as though fully set forth herein.

36. Answering Paragraph 36 of the Complaint, Activision states that

it is without knowledge or information suff cient to farm a belief as to the truth of

^ the remaining allegations therein and, on that basis, denies them.-n-

ACTIVISION'S ANSWER AND COUNTERCLAIMS; AND DEMAND FOR JURY TRIAL


1 37. Answering Paragraph 37 of the Complaint, Activision denies the

2 truth of the allegations therein.

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3$. Answering Paragraph 38 of the Complaint, denies the truth of the



truth of the allegations therein.


truth of the allegations therein and specifically denies that Plaintiff is entitled to

damages or any other relief.



'damages or any other relief.




THIRD CAUSE OF ACTION


incorporates by reference Paragraphs I through 26, Paragraphs 28 through 34 and

Paragraphs 36 through 42 of its Answer, as though fully set forth herein.




truth of the allegations therein



damages or any other xelief.

-^-ACTIVISION'S ANSWER AND COUNTERCLAIMS; AND DEMAND FOR ,NRY TRIAL


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FOURTH CAUSE OF ACTION


incorporates by reference Paragraphs 1 through 26, Paragraphs 28 through 34,

Paragraphs 36 through 42 and Paragraphs 44 through 46 of its Answer, as though

fully set forth herein.





S0. Answering Paragraph SO of the Complaint, Activision denies the



S 1. Answering Paragraph S 1 of the Complaint, Activision denies the

truth of the allegations therein and specif tally denies that Plaintiff is entitled to any

relief

FIFTH CAUSE OF ACTION

S2. Answering Paragraph S2 of the Complaint, Activision


Paragraphs 36 through 42, Paragraphs 44 through 46 and Paragraph 48 through 51

of its Answer, as though fully set forth herein.

53. Answering Paragraph S3 of the Complaint, Activision denies the


I relief.

S4. Answering Paragraph 54 of the Complaint, Activision denies the


f relief.

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relief.

SIXTH CAUSE 4F ACTION



Paragraphs 36 through 42, Paragraphs 44 through 46, Paragraphs 48 through S 1 and

Paragraphs 53 through 55 of its Answer, as though fully set forth herein.






^ truth of the allegations therein.

60. Answering Paragraph 60 of the Complaint, Activision states that

the allegations therein purport to state a legal conclusion as to which no answer is

required but, to the extent an answer is necessary, Activision denies the truth of the

allegations therein and specifically denies that Plaintiff is entitled to or has satisf ed

^ the requirements for rescission.

PRAYER FOR RELIEF

61. Answering the Prayer for Relief, Activision denies the truth of

the allegations therein and specif tally denies that Plaintiff is entitled to damages or

^ any other relief,

GENERAL DENIAL

Any allegations with reference to Activision that have not been

specifically admitted in the preceding paragraphs are hereby denied.

-^ ^-ACTIVISION'S ANSWER AND COUNTERCLAIMS; AND DEMAND FOR NRY TRIAL


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AFFIRMATIVE DEFENSES

By alleging the Affirmative Defenses set forth below , Activision does

not agree or concede that it bears the burden of proof or the burden of persuasion on

any of these issues, whether in whole or in part.

FIRST AFFIRMATIVE DEFENSE

The Complaint fails to state a claim upon which relief can be granted.

SECOND AFFIRMATIVE DEFENSE

Plaintiffs claims are barred, either in whole or in part, by licenses

granted to Activision.

TIIIRD AFFIRMATIVE DEFENSE

Plaintiffs claims are barred by the First Amendment to the United

^ States Constitution and by Article 1 § 2 of the California Constitution.

FOURTH AFFIRMATIVE DEFENSE

Plaintiff s claims are preempted by the United States Copyright Act.

FIFTH AFFIRMATIVE DEFENSE

PIaintiff lacks standing to assert the claims alleged in the Complaint

^ and otherwise lacks protectable rights asserted in this action.

SIXTH AFFIRMATIVE DEFENSE

Plaintiffs claims are barred, either in whole or in part, by the doctrine

I of waiver.

SEVENTH AFFIRMATIVE DEFENSE


of acquiescence and consent.

EIGHTH AFFIRMATIVE DEFENSE

PIaintiff s claims are barred, either in whole or in part, by the doctrine

J of estoppel.

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NINTH AFFIRMATIVE DEFENSE

Plaintiffs request for relief, including without limitation as to its

request for equitable relief, is barred, either in whole or in part, by the doctrine of

lathes.

TENTH AFFIRMATIVE DEFENSE


of unclean hands.

ELEVENTH AFFIRMATIVE DEFENSE

Plaintiffs damages, if any, were not caused by Activision and are not

attributable to the acts or omissions of Activision.

TWELFTH AFFIRMATIVE DEFENSE

Plaintiff has failed to mitigate its damages, if any.

THIRTEENTH AFFIRMATIVE DEFENSE

Plaintiff s damages are barred, in whole or in part, because Activision is

entitled to offset from Plaintiff.

FOURTEENTH AFFIRMATIVE DEFENSE

Any obligation owed by Activision to Plaintiff has been performed in

full in the manner agreed by the parties.

ADDITIONAL DEFENSES

Activision has insuff cient knowledge or information upon which to

form a belief as to whether additional defenses are available. Activision reserves the

right to amend this Answer to add, delete, or modify defenses based on legal

theories which may or will be divulged through discovery, through change or

clarification of the governing law, or through fixrther legal analysis of Plaintiff s

positions in this litigation.

-13-ACTIVISION'S ANSWER AND COUNTERCLAIMS; AND DEMAND FOR JURY TRIAL


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COUNTERCLAIIVlS

Nature Of Action

1. Activision is a leading international publisher of interactive

entertainment software products. Among its many successfitl products, Activision

has marketed and sold videogames in the "Guitar Hero" franchise. These

videogames, which allow users to emulate rock stars by using guitar-shaped and

other controllers to play in time to popular songs, have received considerable

acclaim from critics and consumers alike. The "Guitar Hero" franchise also has

..been phenomenally successful, with aver 40 million units of the videogames sold to

date.

2. Activision brings Counterclaims for No Doubt's unjustified

refusals and failures to honor its promises . The members of No Doubt licensed their

publicity, trademark and other rights for use in the latest release in the "Guitar Hero"

franchise, known as "Band Hero." No Doubt also agreed to provide services,

including marketing services, to promote the "Band Hero" videogame. Even though 'I

Activision fully paid No Doubt under the parties' contract, No Doubt failed and

refixsed to perform the .services No Doubt had agreed to provide and otherwise

breached its agreement with Activision, including by refusing to perform

promotional services. No Doubt furthermore has been unjustly enriched by its

wrongful conduct against Activision, including by retaining money paid to the band

for services it then refused to provide.

3. As a result, Activision seeks compensation for the damages that

Activision has suffered and will continue to suffer as a consequence of No Doubt's

wrongful behavior. No Doubt further has been unjustly enriched and should be

required to disgarge all benef is it wrongfixlly received.

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ACTIVISION'S ANSWER AND COUNTERCLAIMS; AND DEMAND FOR NRY TRIAL


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Parties

4. Activision is a corporation organized and existing under the laws

of the State of Delaware with its principal place of business in Santa Monica,

California.

5. Upon information and belief, No Doubt is a partnership

organized and existing under the laws of the State of California with its principal

place of business in Los Angeles, California.

Jurisdiction and Venue

6. No Doubt is subject to the personal jurisdiction of this Court by

virtue of its presence in the State of California and by virtue of its consent in the

Agreement to the exclusive jurisdiction of the Courts situated in Los Angeles

County, California. The subject matter jurisdiction of this Court is founded upon 28

U.S.C. § 1331 by virtue of No Doubt's assertion of claims preempted by the

copyright laws of the United States, Title 17, United States Code, as well as upon

principles of supplemental jurisdiction pursuant to 2$ U.S.C. § 1367.

7. Venue is proper under 28 U.S.C. § 1391(b}, as No Doubt resides

in this District and as a substantial part of the events and omissions giving rise to the

claims herein occurred in this District.

Facts

8. Activision is the publisher of the "Band Hero" videogame, which

is the latest installment in Activision's highly successfixl "Guitar Hero" videogame

franchise.

9. Activision's "Band Hero" videogame allows players to pretend

that they are performing in a rock band in time with popular songs. Players choose

among options such as character and whether to perform by singing, playing guitar,

playing bass or playing drums. The character options in "Band Hero" include both

fictional characters and avatars of real-life performers. All told, the "Band Hero"

game disk features 65 songs {by many different artists) and numerous characters-IJ-

ACTNISION 'S ANSWI"R AND COUNTERCi ,ATMS; AND DEMAND FOR JURY TRIM.


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(both fictional and real - life) to enhance the game-play experience . Tn certain game

modes , once the user chooses a character , mode of play and/or song , the user plays

as the selected character along with the song to win points . In the case of simulated

guitar play , for example, the user wins points by correctly timing the pressing of fret

buttons and a strum bar on a guitar-like controller . In the case of simulated vocal

play, the user accumulates points by singing into amicrophone-like controller and

correctly matching his or her vocals to such characteristics of the song as pitch and

,,timing.

10. Pursuant to the Agreement , a copy of which is attached hereto as

Exhibit 1 and incorporated herein by reference , the avatars of real -life performers in ^

"Band Hero" include members of No Doubt. Under the terms of the Agreement, the '^

members of No Doubt granted Activision a worldwide right and license to use,

among other properties , their likenesses and names for "Band Hero." Agreement, ¶

5.1. So that their likenesses could be used to create their in-game characters, among

other things, members of Plaintiff agreed to participate in production services "for

the purposes of photographing and scanning Artist's likeness , and capturing Artist's

motion-capture data." Agreement , ¶ 2.1.1. Pursuant to the Agreement, Plaintiff s

members participated in the photographing and scanning of their likenesses and in

the capturing of their performances for "Band Hero ." Furthermore, under the

Agreement , Activision is the owner of "Band Hero ," as well as "all digitized images

and models" made of Plaintiffs members and "all motion data" captured as part of

the production services. Agreement , ¶ 5.2.1.

11. Under the Agreement , No Doubt further promised to provide

marketing and promotional services for "Band Hero." Agreement, ¶¶ 3.1-3.6.

These services that No Doubt agreed to provide included , without limitation, press

interviews and participation in video "shout-outs." Id. No Doubt also agreed to

approve promotional materials for "Band Hero." ld.

-16-ACTIVISION'S ANSWER AND COUNTERCLAIMS; AND DEMAND FOR.IURY TRIAL


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12. Despite its obligations under the Agreement, and despite having

been paid by Activision, No Doubt failed and refused to fiilfill its responsibilities

under the Agreement, without excuse or justification.

Claim for Relief --Breach of Contract

13. Activision repeats and realleges each and every allegation set

forth in paragraphs 1 through 12, above, as though fully set forth at length.

14. Activision fully paid No Doubt under the Agreement. The

Agreement is a valid, enforceable contract, and Activision has performed each and

'every term and condition set forth therein or otherwise was excused from

performance by virtue of No Doubt's conduct.

1S. Pursuant to the Agreement, and for good and valuable

consideration, No Doubt agreed that its members would provide services, including

marketing services, in connection with "Band Hero." No Doubt nevertheless

materially breached the Agreement, including without limitation by failing and

refusing to provide marketing services and other promotional support for 'Band

Hero" as required by the Agreement.

16. As a consequence of No Doubt's breach, Activision has suffered

and will in the future continue to suffer damages in an amount to be proven at trial.

Second Claim for Relief -- Unjust Enrichment

17. Activision repeats and realleges each and every allegation set

forth in paragraphs 1 through 12, above, as though fully set forth at length

18. In paying money to No Doubt, Activision conferred a benef t

upon No Doubt. In addition, No Doubt obtained benefits from its inclusion in

Activision's "Band Hero" videogame. No Doubt had knowledge of, and have

^ voluntarily accepted and retained, all such benefits.

19. The circumstances are such that it would inequitable for No

Doubt to retain such benefits without paying the value thereof to Activision.

-1 /_ACTIVISION'S ANSWER AND COUNTERCLAIMS; AND DEMAND FOR JURY TRIAL


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20. Accordingly, in the alternative to the First Claim for Relief, No

Doubt has been unjustly enriched and should disgorge and pay to Activision all such

benefits.

Praver for Relief

'WHEREFORE , Activision hereby respectfully requests that this Court:

a. Enter judgment in favor of Activision and against No Doubt;

b. Award Activision its damages , together with interest;

c. Order No Doubt to disgorge all benefits , including payments,

received from Activision;

d. Order No Doubt to pay Activision the full cost of this action and

Activision ' s reasonable attorneys' fees; and

e. Award such other and further relief as this Court deems just and

i proper.

DATED: December Z. , 2009 QUINN EMANUEL URQUHART OLIVER &HEDGES, LLP

By ^ ^dMichael T. ZellerAttorneys for Defendant and Counter-claimant Activision Publishing, Inc.

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ACTIVISION'S ANSWER AND COllNTERCLAIMS; AND DEMAND FOR.TURY TRIAI,


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DEMAND F4R JURY TRIAL

Counterclaimant and defendant Activision Publishing, Inc, hereby

demands a trial by jury on all claims so triable.

DATED : December 2 , 2009 QUINN EMANtJEL URQYJHART QLIVER &HEDGES, LLP

By ^^ ^^^Michael T. ZellerAttorneys for Defendant and Counter-claimant Activision Publishing, Znc.

- i ^^ACTIVISION'S ANSWER AND COUNTERCLAIMS; AND DEMAND FOR TiJRY TRIAL


EXHIBIT 1


{i- r

Ac` i lisioN.3100 Ocean Park BoulevardSanta Monica , Califamia 90405Tel: 310.255.20p0Fax: 310.255.2152wwHr.acflvlslon.com

Party: Ho DoubtActivision Produet: Band FferoDeal Typs: Character Name and Likeness License re No DaubE

PRQFESSIONAL SERY3Ci;S ANt) CHARAGT[:R LECIrttSE AGREEMENT

This Pr❑fessional Services and Character License Agreement (the "Agreement '} Is entered into between ActivisionPublishir^q , Inc., and ifs affiliates , with an address of 3100 Ocean Park Blvd., Santa Monica , CA 90405 {collectively,"AcllvEsion '}, and Na Doubt, a California Partnership, Go Seth t.ichtsnstein, Galdrtrg , Hertz & Licirenstein 450 NorEhRoxbury prive , 8r" Flonr , Beverly Hfils , CA 90210 ("Artist'} dated as of May 21, 2009 (the "Effective iaate`}.

1. GENERAL1.1 Artist awns and controls the personality rights (name and likeness rights] #o the musical artist professicnaNy

known as Na D ❑ubt, including the band name and the name and likeness rights !o each of the fndlvidualband members {Gwen Stefani, Tam Dorn ❑nt, Tony (Canal, and Adrian Yeung). It is specif[caByacknowledged and agreed that the rlghEs granted herein relate solely to the group 'No Daupt` and not theIndividual members' activities apart farm the group.

1.2 This Agreement sets out the Eem^rs upon which Artist has agreed to grant to Actlvlsian certain rights to utilizeArtist's nama{sj, likeness{es}, Iega(sj,and associated trademarks} and other related intellecEual propertyrights {the "Licensed Rroperty"j and #o provfdR to Activision certain producton and marketing sarvEces inconnection with Activision's "Band Herd video game (the "Game"j.

2. PROdUCTIQH SERVftrE52.1 Artist shaft provide the following services regarding the Game production (calfecGvely, the `Services"}:

2.1.1 Artist to participate En one ('(} day of Came prvductlan services at the offices of the developer of theGame , Neversaft , in Vyoodland Nllls, ar such other location In Los Angeles as mutually delern1inedby the parties , for the purposes of photographing and scanning Artst's likeness , and capturingArtist's mopinn-capture data.

2.1.2 At a mutually agreed lime and IocaEtan, Activfsfon shall be permitted to ttlm "behind -tha^cenes/h-_ro11 footage ' andlorfaka publicity photos of Artist and have Artist answer pre-approved interviewquestions about the Game far marketing and PEZ purposes . Tice phatograpfterslvideographars andall footage and aEher representations and any use ar explaiiatlon thereof shall be sub ]ecf to Artistprior written approval.

2.2 Activlsiorr acknowledges the completion aT the foregoing.

3. MARKETENG SERVICES3.i Subject to Artist's prafessianaf commitments , Artist sf^afl participate in three {3) sntertainment oriented,

gaming enthusiast Press ar amine media Intenliews (via phone , online , or In-pQrsvnj.3.2 RrUst shall, Tor the pert❑d Sept, 1, 2009 to Jan.1, 201{) allow Band Hero promo materials approved by

Artist to bB placed on such of Artist's community webslte(sj as Artist shat) determine.; The amount and sizeof such materials and tt+e placement thereof within the applicable site(s) shelf be determined by Artist.

3.3 Artist sha1E particpale in either : (a) one ( 1) press day of no mono than four {4) hours, in Los Angelesconsisting of naEional broadcast television (e.g., manning shows, tafe-night shows , entertainment shows,etc.], radio catwlns , andlor phone or in-person interviews ; ar {b) one { 1 } Press Satellite Taur {up to 4 hours),

Charaeter License Agreement Page 1 TSNo poubt

Exhibit ^Page 20


sub)ect to mutual agreement an timing and location and with reasonable deference to lVo Qoubt 's schedulingneeds and requirements.

3.4 Artist shat! provide two (2j recorded video `shout -outs (e .g.,'Hi, #his is Nv Doubt anti we're in the new BandNero game"), subject to Artist 's scheduling demands and subject to Artist 's review and approval of thecontents of such 'shout outs'.

3.5 Artist shalt have approval rights over the press deta€Is for the marketing services set forEh above ( speciCrcproposed shows, In#ervlewer, etc.j,

3.6 Activision shall pay for Artist's customary expenses related tv the above marketing sereices, including butnot limited to travel, hair, and makeup expenses. Any expenses to be reimbursed shall 6e subject faAcfivision's prier written approval , and upon request , Artist shall prov€de reasonable receipts or other proofof expenditure related to such expenses . In the event that Activis€on will not approve such customaryexpenses in advanra , E`!o Dautat shalt have the option of not performing the applicable services.

4. MtJ51G UCSNSINGAcGv€sion shall use commercially reasonable efforts to license no more than three (3) Artist songs(masterlcamposilfon) for incorporation and use In the Game , Artist shaft have approval aver the songs to beused, not to be unreasonably withheld . Activision shall be solely rsspans€ble for oh#aining and paying for allnecessary clearances and licenses, as wail as any required third party approvals . Artist shall provide ellreasonably requested assistance 1a Activision to fadlltate music clearances and licensing of Artlsi 's musicfar the Game.

5. GRANT O>= RIGHtS; OWNSR5HIP5.1 L)pensed Proaerty . Artists grants fa Activision the non-exclusive , worldwide right and license to use the

Licensed Property (including Artist's likeness as provided lay or approved by Artist ) solely in the one (1)Game far al [ gaming platforms and formats , an the packaging for the Game , and In advertising , marketing,pramativnat and PR materials far the Game.

5.2 wn hi .5.2.1 All digitized images and models, and ail motion data shat[ be considered as a'work for hire (as .

defined under the tl.S. Copyright Lawsj an behalf of Activision, and Activislan shaft own all rightsthereto, provided that Activisian 's uses of such materials shall be sub ject to the terms hereof andlimited to those uses permitted herein.

5.2,2 All b-roil featage and photographs of Artist taken during the Services shall be owned by Artist,subject to Act€vislon's right to use the same in and in connecGan with the Game as set forth herein,and provided that (i) Activision may review and destroy any such materials that contain trade secretor other sensitive materials, {ii) Activision shall not be obligated to prov €de any clearances orlicenses to any third party materials , and (iilj Artist shall not use any such materials withoutActivision's approval during a period of one ( 1 j year frorn the Pifecfive Hats.

ti. APi'RflVAL R1GHT&6.1 A^Ist's likeness as Implemented in the Game (the "Character Likeness`), any use of Artist's name andlor

likeness other than Ina `billing block' lash€an an the back of the packaging for the Game , and the b-rall andphotography ar other representation of the Services or of Artist , shall ba sulaject to Artist 's prior writtenapproval.

6.2 Activision shall submit each of the above (i.e., the Character Likeness, name uses , and to-roll andphotography or other representation) to Artist for review and Artist shall have ten ( 10j business days toeither approve ar disapprove.

6.3 If Artist fails to either approve or disapprove a submission within such ten (10 ) business day period,Activision shalt provide Artist notice of sucfr failure and if Artist Ihen fails to either approve or disapprovesuch submission within three (3) business days from Act€vision 's notice, the subm €ssion shall be deemedapproved.

6.4 Actlvis€on shall not 6e required to submit far approval uses of previously approved assets, provided suchuses fall within the rights granted herein (e.g., using a previously approved Character Likeness depiction inmultiple advertising materials).

Character t.lcense Agreement Page 2 TSNo Doubt A^IN®OM,

exhibit 1Page 21


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7. EXCl.USWITYFor a period of five ^5 ) years From the Effective t]ate , Artist shall not license ar otherwise authorize or permitany other party to use the Rrtist name , likeness, loges, or trademarks "in or in connection with any othermusiarhythm based videogame including advertising or promation^ related #hereto}. The foregoing shall notrestrict: (i} any of the members of tVo Doubt from any individual activity , or (ii) any music licensing, and thelimited use of Artist's name where customary as part of credits related thereto.

e. GONSIDERATIDN ,8.1 Fees, 1n conslderatlan for the in^ame character name and Eikensss nigh#s, martceting services set forth

herein . and the rights to the Cleansed property granted herein , Activision shall pay Artist an aggregate fee ofREDACTEI?

8.2 Came Conies. Upon commercial release of the Game, Activision shall provide Artist with ten (10}oompllmen#ary copies of the Game.

8.3

8.4 ^^Qut Na rr of Fees. The above fees shall bs the Iota[ campensaflon payable to Arilsl for the Servicesand the rights granted herein , and sha11 be made an a onetime , complete buy-out basis. Artist shall not beentitled to royalties , re-use, public performance , ar other fees or payments with regard to the Services andlorany permitted uses or explo[tatian set forth herein _ Artist represents and warrants that Artist shall procureany required record label or other third party waiver and consent necessary io enter into this Agreement,and that in no event shall Activision be required io make any payments to any such label or third partyregarding the Services andlor rights granted herein. The foregoing shalt not apply to clearances , Eicensas,permissions nr consents relaEing to rights in any musical compositions or master recordings , It befogunderstood that Actlvisian shelf be Soiefy responsible for obtaining and paying for any such, clearances,licenses , permissions and consents.

9. FtEPfiESENTATIONS, WARRANTIES AND INDEMNITYEach party represents and warrants to the ether that each has the right and authority to enter into andperform their obtigattons under this Agreement, andlar to grant the rights granted hereunder . Activision andArtist shat ) hold harrniess one another and their officers , directors, agents and employees (as applicable)from and against a[1 claims , iiabili#ies, damages and expenses (including reasonable outside attorneys' feesand costs ) arising out of a breach of this I^greemen# or any representations or warranties contained herein.Which is the subject of a Final adverse judgment ar settled with the indemnitea's consent

10. MlSGELLANE4tfS10.'t Artist's services under ibis Agreement are personal in nature, and Artist shall not, wlthatrt Aciivision's prior

written consent , assign or transfer any of its rights or obligations under this Agreement . Subject to theforegoing , this Agreement shall inure to the benefit of the parties ' successors , transferees or assigns andshall be binding upon the parties` successors , transferees or assigns.

'10,2 Nothing contained In this Agreement shall be deemed to constitute a partnership between orjaint venture bythe partfas hereto , nor shall either party ba deemed the agent of the other. Artist is an independentcontractor and nothing in this Agreement shall be interpreted or wnstrued to create ar establish therelationship of employer and employee between Aclivision and Artist.

10.3 This Agreement constitutes the entire agreement end understanding between the parties with respect to thesubject matter hereof , thereby superseding all prior negotiations , preliminary agreements , carrespondsnceor understandings, written or oral . No amendment ar modification of this Agreement Trill be made except byan Instrument In writing signed by both parties. If any prevision of this Agreement 1s or becomes ar isdeemed [nvaitd, Illegal or unenforceab [a under tt^e applicable laws or regulations of any jurisdiction, eithersuch provision will be deemed amended to conform to such taws nr regu[atons without materially alteringthe Intentlans of the partes and enforced accardingly or if shalt be stricken and the remainder of thisAgreement shall remain In full form and affect. Tha substantive laws of California shall apply to thisAgreement, and the parties consent to the exclusive jurisdiction of the coUris In Las Angeles County.

Character license Agreement Page 3 T5No Doubt ^,

Exhibit 'f

Page 22


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AGi2^f=t? TO BY;ACr1V1SlON AUBL1S1flNG,1NC.

^`By:Name : Greg Deutsch

Title: 5r. Vice president and General Counsel

Character t.icense AgreemenEn1p Doebt

No^O^^r

By:r

Name ; (°/'^`^ /^^i^•

Title:

Pag9 4

Exhibit 1Page 23

T5


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PROOF OF SERVICE(CCP § § 1013a, 2015.5}

STATE OF CALIFORNIA }ss.

COUNTY OF LOS ANGELES )

I am employed in the County of Los Angeles, State of California ; I am over the age ofeighteen years and not a party to the within entitled action ; my business address is 865 SOUTHFIGUEROA STREET, 10TH FLOOR, LOS ANGELES, CALIFORNIA 90017.

On December 3, 2009, I served the foregoing document described as ACTIVISION'SANSWER AND COUNTERCLAIMS• AND DEMAND FOR JURY TRIAL on theinterested parties in this action by placing a true copy thereof, enclosed in a sealed envelope,addressed as follows:

Bert H. Deixler, Esq.Gil N. Peles, Esq.Proskauer Rose LLP2049 Century Park East, 32"d FloorLos Angeles, California 90067-3206

X SY MAIL

I placed such envelope in the mail at Los Angeles, Califoniia. The envelope was mailedwith postage thereon full prepaid.

X As follows: I am "readily Familiar" with the firm's practice of collection and processingcorrespondence for mailing. Under that practice it would be deposited with U.S. Postalservice on that wine day with postage thereon fully prepaid at Los Angeles, California inthe ordinary course of business. I am aware that on motion of the party served, service ispresumed invalid if postal cancellation date ar postage meter date is more than one dayafter date of deposit For mailing in affidavit.

Executed on December 3, 2009, at Los Angeles, California.

STATE I declare under penalty of perjury under the laws of the State of Californiathat the above is true and correct.

X FEDERAL I declare that I am employed in the office of a member of the bar of thiscourt at whose direction the service was made.

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BETTY GOMEZ ^ •; ^- ^^` ".=^';.---^Type or Print Name l"^ ^'i na ^ure "^^ ^"

024 ] 6 .2 29 5413 2 1 1 2&3. ]


Fall 2010 open memo assignment no doubt v. activision right of publicity california answer by...

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