2012.08.14 - Hollywood Reporter - Axl Rose Gets Mixed Result at Hearing in ‘Guitar Hero’ Lawsuit

Axl Rose Gets Mixed Result at Hearing in ‘Guitar Hero’ Lawsuit

A judge is set to toss one claim but keep another in ongoing case involving the Guns N' Roses singer's heartache when he saw Slash featured on the game cover.

By Eriq Gardner

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.

https://www.hollywoodreporter.com/business/business-news/axl-rose-guitar-hero-lawsuit-361946/

The original lawsuit document can be found here:

https://www.a-4-d.com/t3403-2010-11-23-billboard-axl-rose-sues-activision-over-guitar-hero

More court documents from the case:
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Declaration of Wayne Milligan, Sept. 16, 2011:









DECLARATION OF WAYNE MILLIGAN

I, WAYNE MILLIGAN, the undersigned, declare:

1. I am over eighteen years of age. From 2004 through 2009, I was employed as an account manager for Sussman & Associates, a business management firm serving music industry clients. I make the following declaration of my own personal knowledge, and if called upon to do so, could and would testify to the facts set forth herein. I make this declaration in connection with a lawsuit filed by W. Axl Rose ("Rose”), Black Frog Entities, Inc., and Black Frog Music, Inc. against
Activision Blizzard, Inc. and Activision Publishing, Inc., Los Angeles Superior Court Case No. BC 450057 (the “Lawsuit”). I have no stake or interest in the outcome of the Lawsuit.

2. Guns N’ Roses Music (“GNR Music”) was a client of Sussman & Associates for the entire time period in which I was employed by the firm, and I was directly involved in and primarily responsible for the administrative and publishing management services that Sussman & Associates provided to GNR Music. By virtue of that involvement, I acquired personal knowledge regarding GNR Music.

3. GNR Music is a partnership made up of Rose, Saul Hudson aka Slash ("Slash”), and Michael “Duff’ McKagan (“Duff”), three of the original members of the band Guns N’ Roses (“GNR”). Neither Black Frog Music, Inc. nor Black Frog Entities, Inc. ever had any ownership interest in GNR Music, and neither were partners in GNR Music, for the time period I was employed by Sussman & Associates.

4. During and before 2004 through 2009, GNR Music owned and controlled the publishing rights to the “old catalogue” of GNR musical compositions, including, without limitation, “Welcome to the Jungle,” a song from the band’s debut album, “Appetite for Destruction.” It is my understanding that during and before 2004 through 2009, the master sound recordings for the “old catalogue” of GNR musical compositions, including “Welcome to the Jungle,” were owned by the David Geffen Company (currently Universal Music Group). GNR Music maintained the right to approve or disapprove third party requests for licenses to use such master sound recordings.

5. During my employment with Sussman & Associates, I acted on behalf of GNR Music as its agent and representative in receiving and responding to third party requests for licenses to use GNR musical compositions owned by GNR Music, and for approving third party requests for licenses to use the master sound recordings for such musical compositions. Pursuant to my communications with the partners or their representatives, unanimous approval by the individual partners of GNR Music (or their representatives on their behalf) was required before a third party license request could be granted or approved. Generally, upon Sussman & Associates’ receipt of a third party request to license a musical composition owned by GNR Music, or of a request for approval from Universal Music Enterprises (which handles licensing for the David Geffen Company) of a third party request to license the master sound recording of such musical composition, as a matter of protocol, I would distribute such request to each of the three partners of GNR Music (Rose, Slash, and Duff) or their respective agents. With respect to Rose, I sent third party license requests to Beta Lebeis, and communicated with Ms. Lebeis as needed regarding all aspects of those requests as they pertained to any issues raised by Rose. I understood Beta Lebeis to be Rose’s personal assistant, agent and representative and to be authorized to make and convey decisions regarding the approval of third party licensing requests and requests for approval on his behalf. I never, to my knowledge, communicated in writing or orally with Rose directly. Generally, once internal approval was received from each partner, I, on behalf of GNR Music, would communicate such approval to the third party requestor and execute the appropriate license(s) on behalf of GNR Music, or, in the case of requests for approval of master sound recording licenses, communicate partnership approval to Universal Music Enterprises and authorize it to grant the appropriate license(s).

6. Beginning on or about February 23, 2007, I received communications from Brandon Young of Activision requesting a license to use “Welcome to the Jungle” and “Paradise City” in the video game Guitar Hero III. At around the same time, I received a request for approval of a license to use the master sound recording of “Welcome to the Jungle” and "Paradise City” in Guitar Hero III from Universal Music Enterprises.

7. Ultimately, in or around March-April 2007, GNR Music and Activision reached an agreement on the terms of a license for both the musical composition and master sound recording of “Welcome to the Jungle” in Guitar Hero III, and a separate issuance by GNR Music of a license to use certain GNR logos in Guitar Hero III for an additional, separate fee. The terms of use of the musical composition were memorialized in a “synch licensing request” (the “Synch License”).

8. On or about May 14, 2007, Beta Lebeis informed me that she had heard that songs by Velvet Revolver, Slash’s post-GNR band, would appear in the Guitar Hero III video game, and that if Velvet Revolver songs were going to appear in the same Guitar Hero III video game as “Welcome to the Jungle,” Rose would not approve the Synch License or the use of the “Welcome to the Jungle” master sound recording. Since the unanimous consent of all of the partners of GNR Music was required, I could not give GNR Music’s authorization for Activision to use “Welcome to the Jungle” in Guitar Hero III pursuant to the Synch License, or approve of Universal Music Enterprises’ issuance of a license for the “Welcome to the Jungle” master sound recording, without Rose’s approval. I called Brandon Young to discuss the issue, and to inform him that if Velvet Revolver songs were going to be in the same Guitar Hero III video game as “Welcome to the Jungle,” I would not be able to deliver GNR Music’s approval of the Synch License for “Welcome to the Jungle” or approval of the “Welcome to the Jungle” master sound recording license. In response, Mr. Young stated that Activision did not intend to include Velvet Revolver songs in the same Guitar Hero III video game as “Welcome to the Jungle.” Attached hereto as Exhibit 1 is a true and correct copy of a May 14, 2007 email from Mr. Young to me confirming . our conversation. At no point did we discuss whether or not Velvet Revolver songs would appear in advertising or television commercials for Guitar Hero III, or whether Velvet Revolver songs would be available for purchase in a separate downloadable software package, compatible with the Guitar Hero III video game. Neither the use of Velvet Revolver songs in advertising and television commercials nor the ultimate availability of Velvet Revolver songs for purchase in a . separate downloadable software package is inconsistent with the statements made by Brandon Young to me in our telephone conversation on or about May 14, 2007 regarding the use of Velvet Revolver songs in the same physical Guitar Hero EQ video game, or in the May 14, 2007 email confirming such conversation.

9. I immediately forwarded Brandon Young’s May 14, 2007 email to Beta Lebeis. She thereafter confirmed that Rose had authorized her to authorize me to execute the Synch License for the use of “Welcome to the Jungle” by Activision in Guitar Hero III, and to execute the “artist approval request” (the “Artist Approval”) from Universal Music Enterprises for the use of the “Welcome to the Jungle” master sound recording in Guitar Hero III. Slash and Duff had given me their authorization as well. Therefore, since all of the partners of GNR Music granted their approval, on June 5, 2007, I executed the Synch License and the Artist Approval, both on behalf of ("obo”) GNR Music.

10. Attached hereto as Exhibit 2 is a true and correct copy of the fully executed Synch License, signed by me on behalf of GNR Music on June 5, 2007.

11. Attached hereto as Exhibit 3 is a true and correct copy of the fully executed Artist Approval, signed by me on behalf of GNR Music on or about June 5, 2007.

12. During my employment with Sussman & Associates, neither I nor Sussman & Associates ever acted as an agent or representative of Rose, Black Frog Music, Inc., or Black Frog Entities, Inc. In all negotiations regarding Guitar Hero III, including, without limitation, the negotiations and conversations regarding the use of “Welcome to the Jungle” in Guitar Hero III, Sussman & Associates and I acted exclusively on behalf of GNR Music, the partnership, and not on behalf of Rose, Slash, Duff, Black Frog Music, Inc., or Black Frog Entities, Inc. This includes all of the discussions and correspondence between myself and Activision representatives, including Brandon Young and Tim Riley, regarding Beta Lebeis' concerns over the presence of Velvet Revolver tracks in the same Guitar Hero HI video game as “Welcome to the Jungle” - in all of these discussions, I was authorized to act and did act solely on behalf of GNR Music, not Rose, Black Frog Music, Inc., or Black Frog Entities, Inc. At no point did I ever communicate to Activision or any of its representatives that I was acting on Rose’s behalf. I executed both the Synch License attached hereto as Exhibit 2, and the Artist Approval attached hereto as Exhibit 3, on behalf of GNR Music, the partnership, and not on behalf of Rose or either of the other individual partners. I did not make any agreement or contract with Activision Blizzard, Inc. or Activision Publishing, Inc. as an agent or representative of Rose, Black Frog Music, Inc., or Black Frog Entities, Inc., or otherwise on behalf of Rose, Black Frog Music, Inc., or Black Frog Entities, Inc., related to Guitar Hero III or any other matter. To my knowledge, neither Black Frog Music, Inc. nor Black Frog Entities, Inc. have any ownership interest in the composition “Welcome to the Jungle,” and thus had nothing to do with the licensing of “Welcome to the Jungle” for use in Guitar Hero III.

13. I have reviewed the complaint filed by Rose, Black Frog Music, Inc., and Black Frog Entities, Inc. against Activision Blizzard, Inc. and Activision Publishing, Inc. on November 23, 2010. Certain of the allegations in the complaint regarding statements that I allegedly made or heard are not true. By way of example only, prior to my execution of the Synch License on June 5, 2007 and the Artist Approval on or about the same date, neither Rose nor any of his representatives, including Beta Lebeis, ever told me that Rose’s authorization to approve the use of “Welcome to the Jungle” or his authorization to execute the Synch License and the Artist Approval on behalf of GNR Music was related to or conditioned in any way on Slash's involvement or presence in or absence from Guitar Hero III, or related to or conditioned in any way on the exclusion or inclusion of music written and/or performed solely by Slash in Guitar Hero III. At no time did I ever tell Beta Lebeis, or any representative of Rose, that Activision had assured me that Slash would not be involved in Guitar Hero III; that Slash compositions would not be in Guitar Hero III; or that Velvet Revolver songs would not be used in Guitar Hero III commercials or available in separately available downloads.

14. Attached hereto as Exhibit 4 is a true and correct copy of an email I received from Beta Lebeis on October 28, 2007, immediately after the release of Guitar Hero III.

15. Attached hereto as Exhibit 5 is a true and correct copy of an email I received from Beta Lebeis on November 9, 2007, immediately after the release of the separately sold Velvet Revolver companion package.

16. Attached hereto as Exhibit 6 is a true and correct copy of an email I sent to Beta Lebeis on November 13, 2007.

17. Attached hereto as Exhibit 7 is a true and correct copy of an email I sent to Laurie Soriano, Alan Gutman (both attorneys for Rose) and Bernie Gilhuly (a business manager for Rose) dated February 21, 2008.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Executed this 16th of September, 2011, at Nashville, Tennessee

Signed
Wayne Milligan

Exhibits mentioned in Milligan's declaration:

Exhibit 2: March 29, 2007 Activision Synch Licensing Request - Video Game to Wayne Milligan



Exhibit 3: May 22, 2007 Universal Music Enterprises Artist Approval Request - Film &
TV to Charles Sussman:



(The rest of the exhibits are not available)

Declaration of Tim Riley, Oct. 5, 2011:




DECLARATION OF TIM RILEY

I, TIM RILEY, the undersigned, declare:

1. I am over eighteen years of age. I am, and at all times mentioned in the Complaint filed by W. Axl Rose, Black Frog Music, Inc., and Black Frog Entities, Inc. in this action was, Vice President of the Music Group of Activision Publishing, Inc. I make the following declaration of my own personal knowledge, and if called upon to do so, could and would testify to the facts set forth herein.

2. As Vice President of the Music Group, I was involved in the licensing of music in the video game Guitar Hero III: Legends of Rock (“Guitar Hero III”).

3. Activision released Guitar Hero III on October 28, 2007.

4. On November 8, 2007, Activision separately released and sold a set of three Velvet Revolver musical tracks in what Activision called a "track pack,” which was available for sale by download.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Executed this 5 day of October, 2011, at 2:50 pm / Santa Monica, CA.

Signed
Tim Riley

Declaration of Daniel M. Hayes, Oct. 6, 2011




DECLARATION OF DANIEL M. HAYES

I, DANIEL M. HAYES, the undersigned, declare:

1. I am an attorney at duly licensed to practice law in the State of California and before this Court. I am an associate with the law firm of Mitchell Silberberg & Knupp LLP, attorneys of record for defendants Activision Blizzard, Inc. and Activision Publishing, Inc. (collectively, “Activision” or “Defendants”). I make this declaration in support of Defendants’ Motion for Summary Judgment or, in the alternative, Summary Adjudication. I have personal knowledge of the following facts and, if called and sworn as a witness, could and would competently testify thereto.

2. Attached hereto as Exhibit 8 is a true and correct copy of Plaintiff W. Axl Rose’s Amended Responses And Objections To Activision Blizzard, Inc.’s Form Interrogatories (the “Amended Responses to Form Interrogatories”), and the verifications of W. Axl Rose (“Rose”) and Beta Lebeis (“Lebeis”) thereto.

3. Attached hereto collectively as Exhibit 9 are true and correct copies of the documents identified by Rose in response to Form Interrogatory No. 50.1(a), which requires the responding party to “identify each DOCUMENT that is part of the agreement” for “each agreement alleged in the pleadings,” in the Amended Responses to Form Interrogatories, as produced to my office in this case.

4. None of the documents identified by Rose in response to Form Interrogatory No. 50.1 (c), which requires the responding party to “identify all DOCUMENTS that evidence any part of the agreement not in writing,” are emails or correspondence of any kind between Rose, Black Frog Music, Inc., or Black Frog Entities, Inc., on the one hand, and Activision, on the other.

5. Attached hereto as Exhibit 10 is a true and correct copy of an email produced by Rose to my office consisting of three pages bearing the Document Numbers HW00040 through HW00042.

6. Attached hereto collectively as Exhibit 11 are true and correct copies of excerpts of the transcript of the deposition of Rose, taken August 31, 2011, cited in Defendants’ Separate Statement of Undisputed Material Facts (“Defendant’s Separate Statement”).

7. Attached hereto collectively as Exhibit 12 are true and correct copies of excerpts of the transcript of the deposition of Beta Lebeis, taken on September 1, 2, and 15, 2011, and selected exhibits thereto, cited in Defendants’ Separate Statement.

8. Attached hereto collectively as Exhibit 13 are true and correct copies of excerpts of the transcript of the deposition of Bernie Gilhuly taken September 27, 2011, cited in Defendants’ Separate Statement.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Executed on October 6, 2011 at Los Angeles, California.

Signed
Daniel M. Hayes

Two of the exhibits mentioned in Hayes' declaration (the rest are not available):

Exhibit 8: "Plaintiff W. Axl Rose’s verified Amended Responses and Objections to Activision Blizzard, Inc.’s Form Interrogatories" (Aug. 8, 2011):

Exhibit 10: "July 26, 2007 Email from Gregory Deutsch to Howard Weitzman and related email string"
(Weitzman was Axl's then attorney, Deutsch was Activision's attorney and Brandon Young was the Music Supervisor of Activision)




Partial transcript:
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From Howard L. Weitzman
Sent: Wednesday, July 25,2007 1:31 PM
To: Young, Brandon

Brandon:

My contact info is below. Just to repeat our conversation Axl wants to withdraw his approval to use Welcome To The Jungle on Guitar Hero 3 because of Activisions using Slash as one of the character and allowing him to play riffs that Slash wrote. Axl has asked me to explore litigation against Activision because he believes he was misrepresented to and that he thought Slash would have nothing to do with the game. It is my understanding that Slash was always a character in Guitar Hero 3 but I don't think Axl was ever told that. I would appreciate your looking into our avoiding lawsuits. Thanks,

Howard