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All we need is just a little (more) patience — Sync license dispute threatens to derail any hope of Guns N’ Roses Reunion Show

Posted in Copyright Law, Entertainment Law

By: Zachary Wadlé

On April 14, 2012 in Cleveland, Ohio, iconic rock band Guns N’ Roses will be inducted into the Rock and Roll Hall of Fame.  The induction comes 25 years after original members Axl Rose (lead vocals), Saul Hudson aka “Slash” (lead guitar), Izzy Stradlin (rhythm guitar), Duff McKagan (bass), and Steven Adler (drums) released their debut album, Appetite for Destruction, which sold more than 28 million copies worldwide and ranks as the best-selling debut album ever.  After a meteoric rise in popularity, the original lineup began to break up in the early 1990’s due to problems with substance abuse by various band-members and acrimonious infighting over the creative direction of the group.  This ultimately led to Axl Rose gaining sole control of all Guns N’ Roses intellectual property and its musical catalog, but also becoming estranged from the original members.  Today, Rose tours as Guns N’ Roses along with a group of new musicians who perform many of the band’s original tunes, along with the band’s new material from its most recent album, Chinese Democracy.

Rock and Roll Hall of Fame inductees traditionally perform a short set during the induction ceremony.  In years past, long-separated bands such as The Police and The Eagles have put aside their differences during the ceremony for a one-time-only reunion performance.  News of Guns N’ Roses’ induction has naturally produced speculation that the original lineup may reunite for the ceremony, which would be a highly anticipated event among the 30 and 40-something rock music crowd.  The only stumbling block appears to be continued animosity between Rose and Slash, which has resulted in multiple public spats and lawsuits over the years. 

The most recent lawsuit – and the dispute that could possibly scuttle any reunion at the Rock and Roll Hall of Fame ceremony – involves Rose, the maker of the popular Guitar Hero game, Activision, and tangentially, Slash.  The lawsuit revolves around Activision’s use of an avatar of Slash in its reproduction of the seminal Guns N’ Roses song “Welcome to the Jungle” in Guitar Hero III.  In the game, players can pretend to be Slash and play the iconic riffs of Welcome to the Jungle.  Rose apparently consented to Activision’s use of Welcome to the Jungle in Guitar Hero III, but Rose claims he was fraudulently induced to sign what is known as a “synchronization license” due to Activision’s misrepresentations about Slash’s depiction in the game.

A music synchronization license – or sync license, for short – is a license that allows the license holder to "sync" music to some kind of media.  Sync licenses are often used for TV shows, movies, and commercials, but any kind of visual paired with music, such as Activision’s Guitar Hero III video game, requires a sync license.  A sync license typically covers a specific period of time, and the license will usually stipulate parameters of how the song can be used in the planned visual medium.

In his lawsuit, Rose claims that Activision fraudulently induced him to execute a sync license authorizing the use of Welcome to the Jungle by telling him that the game would not feature any reference or depiction of Slash.  The lawsuit recounts Rose’s considerable efforts to protect the brand and image of the current iteration of Guns N’ Roses which does not include Slash, instead of the previous version which did include Slash but has not been in existence for almost fourteen years.  Rose claims that during negotiation of the license, "(Activision) began spinning a web of lies and deception to conceal its true intentions to not only feature Slash … but also promote the game by emphasizing and reinforcing an association between Slash and Guns N’ Roses and the band’s song ‘Welcome to the Jungle.’"

Prior to actual release of Guitar Hero III, Rose apparently found out that a character resembling Slash would appear in the game and immediately refused to allow Welcome to the Jungle to be used under the sync license.  In a series of e-mails sent to Activision after the sync license was signed, Rose’s lawyers allegedly told Activision that Rose withdrew his approval because he was never told that Slash’s image was going to be used as an avatar in the game.  Activision went ahead with the game anyway believing that it had all the necessary rights because the written sync license terms did not include any restrictions.  Activision says that the e-mails sent by Rose’s reps to the contrary before the game came out don’t constitute a written contract between the parties. 

Rose’s lawsuit seeks $20 million in disgorgement of profits improperly earned by Activision due to the alleged violation of the sync license.  Activision filed a motion for summary judgment, which was recently denied by the court.  A trial date has been set in January 2013, and it will be interesting to see how the judge and jury deal with sync licenses as applied to virtual avatars in a video game.  In the meantime, Guns N’ Roses’ induction ceremony is scheduled for April 14, 2012.  If Rose is adamant that Slash’s avatar cannot be depicted in connection with Guns N’ Roses in a video game, it seems unlikely that Rose would feel comfortable performing on stage next to the real life version of Slash at the Rock and Roll Hall of Fame induction ceremony.  Don’t Cry Guns N’ Roses fans, but unless an unexpected reconciliation occurs in short order, the chance of a reunion of the original Guns N’ Roses lineup for a one-time-only performance appears to be no better than One in a Million.