Activision, Harmonix and Gibson in Guitarmageddon

Publisher faces legal double whammy

Posted by Staff
Harmonix has withdrawn a lawsuit filed on Monday claiming that Activision has failed to pay it sufficient royalties for Guitar Hero III, which was produced after the two companies parted ways as Harmonix went to work on Rock Band. Harmonix claims it is owed upwards of $14.5 million. If that weren't enough, Activision is also fending off claims by Gibson that it has infringed one of the guitar manufacturer's patents.

According to Variety, the Harmonix lawsuit was retracted yesterday, just a day after it was filed. It is reported that the two have decided to settle out of court, dodging the perils of a messy and public legal battle.

The suit claimed that, under an agreement made with RedOctane, Activision is obliged to pay Harmonix the higher of two rates in the event that any sequel it isn't involved in "incorporates, uses, or is derived from Harmonix property." Harmonix claims that it received the lower of the two rates, however – half the amount it believes it should have.

"(Activision) has failed to pay Harmonix its full share of royalties earned in connection with Harmonix's essential and undisputed contributions of its intellectual property and technology to the bestselling video game Guitar Hero III", reads the lawsuit.

The response? "Activision believes it has made sufficient payments to Harmonix and the claims otherwise do not have merit", said General Counsel George Rose. Activision might believe that, but it doesn't appear to have too much conviction if it is, indeed, settling out of court.

Meanwhile, the Seattle Post Intelligencer reports that Activision filed a complaint against Gibson, which is apparently claiming that Activision is infringing a patent for creating a "simulated musical concert experience." It is reported that the claim was made after Gibson told it to get a license or stop selling Guitar Hero.

A look at the patent, which was originally filed back in 1998, shows a device complete with similar fret buttons similar to those on Activision's peripheral (albeit with a few more for your fingers to play with). But... while the claim has merit, this extract suggests Gibson might be trying it on a bit; "A musical instrument ... having one or more pick-ups or other transducers that will generate electrical audio signals, when the guitar is played". It's a bit of a stretch to claim that Guitar Hero's "guitar" buttons and rocker switch are pick-ups or transducers, and they certainly do no generate electrical audio signals.

Still, it's a patent EA and MTV Games should be wary of as it would be equally applicable to the companies' Harmonix-developed Rock Band.

SPOnG dipped into a Guitar Hero announcement from last year and found the words, “Guitar Hero III: Legends of Rock lets fans thrash and burn with new wireless guitar controllers available for each platform, including exclusive Gibson Guitar's Les Paul model for the Xbox 360". It's clear that Activision makes no bones about the fact that it models its peripherals on the Gibson brand. Unless Activision has been flagrantly flashing Gibson's name about without having ever reached an agreement with the company, the guitar maker has clearly been aware of what the publisher is doing for some time.

Given that, even assuming Gibson has a case, the question, 'Why is this happening only now?' is raised in a huge way. SPOnG contacted Activision to see if it could shed some light on the situation and for confirmation that it is in discussions with Harmonix, but was met with “No comment”.

Source: Variety, Seattle Post Intelligencer

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