8:12pm PT by Eriq Gardner
Axl Rose Gets Mixed Result at Hearing in 'Guitar Hero' Lawsuit
On Tuesday, a hearing was held in a Los Angeles courtroom concerning a $20 million lawsuit brought by Axl Rose against Activision Blizzard for featuring former Guns N' Roses band-mate Slash in Guitar Hero III.
By the end of the hearing, the judge indicated that he was going to toss Rose's fraud claim but allow his breach-of-contract claim to continue, setting up a potential trial next February.
Rose's attorney Skip Miller promises it will be a "very interesting" affair.
In the suit, Rose and his Black Frog Music claimed that the video game publisher fraudulently induced him into authorizing "Welcome to the Jungle" for use in the popular game by telling him during negotiations that it wouldn't feature any reference to Slash, the guitarist with whom he has been famously feuding for years.
One of the big problems for Rose has been that the game was released on Oct. 28, 2007. The front cover of Guitar Hero III featured Slash in one of his classic poses. And yet, Rose's lawsuit wasn't filed until late November 2010 — more than three years after Rose's agent sent Activision an e-mail objecting. Activision's lawyers pointed out that Rose knew about the objectionable material for quite some time yet didn't file soon enough to be within the statute of limitations.
Why did Rose wait? In his own words...
"The reason I did not file a lawsuit is because Activision -- through my managers and representatives -- offered me a separate video game and other business proposals worth millions of dollars to resolve and settle my claims relating to GHIII," said the GnR' frontman in a deposition. "From December 2007 through November 2010, Activision was offering me a Guns N' Roses dedicated video game, a game dedicated to music from the 'Chinese Democracy' album, and other proposals."
Such possibilities will be of interest to GnR fans, but they might not make for good legal reasoning. Officially, Rose's lawyer attempted to argue that his claims did not accrue until he discovered that "Activision had been intentionally concealing its plans to use [Velvet Revolver] and Slash in the game all along."
But the judge isn't accepting that argument and appears ready to strike the fraud claim because the statute of limitations had expired.
The lawsuit came close to being tossed altogether over Activision's objection to Rose's breach of contract claim.
GNR Music, which administers publishing rights to the band's songs, licensed Activision to use the big "Jungle" hit. In a series of e-mails sent to Activision after a written synch license was executed, Rose's reps objected to Slash's image being used as an "avatar." Activision went ahead with the game anyway.
In the case, Activision argues that its agreement was with GNR Music, and that "Rose had no authority to enter into a license for 'Welcome to the Jungle' in his individual capacity because he does not own the song or the sound recording."
Activision says Rose himself confirmed this by saying, "Unanimous approval by all three partners of GNR Music is required before any license to use Guns N' Roses music is given."
The synch license was signed on the band's behalf by Wayne Milligan, a licensing administrator at Sussman & Associates. Milligan does work for GNR Music, but it has been Rose's contention that Milligan was also acting as his own personal agent.
Activision attempted to argue this was irrelevant, that there could be no breach of contract because Rose himself didn't have the authority to unilaterally make a deal.
But the judge is primed to allow Rose's breach of contract allegations to be settled at a trial, which is now scheduled for Feb. 1, 2013.
Miller says he's satisfied with the result, that the "damages and harm will be the same with a lower burden of proof" now that he doesn't need to show fraudulent concealment.
David Steinberg, the attorney at Mitchell Silberberg representing Activision, couldn't be reached for comment.