`^ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 lb 17 18 19 20 21 22 23 24 25 26 27 2$ 02416"22954f3219266. l ^.^ QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP Michael T. Zeller Bar o. 196417} ^ _ n^.ichaelzeller @quznnemanue^l . com ^ '-^. 8b5 South Figueroa Street , 10t Floor Los Angeles , California 90017-2543 ^"-`"-` ' 1 Telephone : 213 443- 3000 Facsimile : ^213^ 443-3100 ^^-': ; ^. ;,. -,w Attorneys for Defendant and ^ `'';; ^? Counterclaimant ^ ^-'^ -- Activision Publishing , Inc. I T''1 `^ UNITED STATES DISTRICT COURT CENTRAL, DISTRICT OF CALIFORNIA _.^ ^^ WESTERN D V N 3 ^`^ ^. ^.;^ NO DOUBT, a California Partnership ; C O. ^ ^;^'^ ^^:^^ ^ Plaintiff and Counter- ACTIVxSION ' S ANSWER AND defendant , COUNTERCLAIIV,[S; AND vs. ACTNISION PUBLISHING, INC., a Delarnrare 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 Page 1 of 25
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Fall 2010 open memo assignment no doubt v. activision right of publicity california answer by activision federal court pdf
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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
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
Case 2:09-cv-08872-SVW-VBK Document 3 Filed 12/03/2009 Page 21 of 25
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
Case 2:09-cv-08872-SVW-VBK Document 3 Filed 12/03/2009 Page 22 of 25
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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
Case 2:09-cv-08872-SVW-VBK Document 3 Filed 12/03/2009 Page 23 of 25
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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
Case 2:09-cv-08872-SVW-VBK Document 3 Filed 12/03/2009 Page 24 of 25
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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.
^ ^,,
BETTY GOMEZ ^ •; ^- ^^` ".=^';.---^Type or Print Name l"^ ^'i na ^ure "^^ ^"
024 ] 6 .2 29 5413 2 1 1 2&3. ]
Case 2:09-cv-08872-SVW-VBK Document 3 Filed 12/03/2009 Page 25 of 25