Activision Sued for Second Time in Month over Guitar Hero

The sound issue with the Wii version of the latest in Activision’s music game series has been the topic of online complaints for weeks. The suit claims Activision “has been aware of this issue since late October.” Samuel Livingston, on whose behalf law firm KamberEdelson sued, said the publisher “has yet to: publicly take responsibility for its advertising and specification misstatements; provide a fix or compensation to Wii gamers for the lack of the advertised Dolby Pro Logic II surround sound; and correct its advertising for current and future purchasers.” The issue is germane because “a central feature” of the game is “sound,” the suit said. Other versions of the game are in stereo.

Livingston seeks $5 million-plus for all buyers joining the suit, including “actual damages, individual restitution, equitable relief” and civil penalties, plus legal costs. He wants a jury trial, putting the potential size of the class at “tens of thousands of members.” It wasn’t immediately clear how many units of the game were shipped or sold. Supplies of the game -- like multiple SKUs of the title -- haven’t matched demand, but many retailers sell it.

Nor was it clear Thursday how the audio mistake occurred. Activision and its RedOctane studio didn’t respond to a request for comment by our deadline. The episode isn’t the first in which an advertised audio or video specification for a game on a next-generation console proved inaccurate -- but this is thought to be the first to provoke a consumer lawsuit. It also appears to be the first major complaint about such an issue on a Wii title. Chances are considerably less of an incorrect audio or video designation on a Wii game than on a PS3 or Xbox game because, unlike its rivals, Nintendo’s console doesn’t support HD or any of the advanced Dolby Digital or DTS surround technologies. In the past, Consumer Electronics Daily discovered multiple mistakes on advertised HD video resolutions of PS3 games, including, on one title, the designation of a resolution that didn’t even exist.

Activision also was sued Nov. 20 in a Michigan U.S. District Court. The Romantics sued the publisher and RedOctane for using a “sound-alike imitation” of the band’s hit, “What I Like About You,” in Guitar Hero Encore: Rock the 80s without the group’s permission. Also named in the suit was game developer Harmonix Music Systems, which went on to develop Guitar Hero III rival Rock Band by Electronic Arts and MTV Games after MTV Games parent Viacom bought Harmonix. The developer had no role in creating Guitar Hero III. The Romantics also complained that some of their fans believe the version in the game is a “master” recording by the group, saying the defendants traded on the band’s identity and “distinctive sound” for “commercial purposes” without its permission. The Romantics want a permanent injunction placed on the defendants to stop them from selling and distributing the game, plus unspecified damages and legal expenses. The band wants a jury to hear its case.

Activision and RedOctane didn’t respond to a request for comment on the Romantics’ suit, which could open up a can of worms for the makers of Guitar Hero and rival Rock Band. The latest Guitar Hero uses more master recordings by original artists than prior editions, as well as a substantial number of sound-alike recordings not performed by the musicians who made them hits. For example, the game’s version of “Hit Me With Your Best Shot” isn’t by Pat Benatar, and -- as in all such cases on the game -- the screen carries a message saying only that Benatar originally performed it. The vast majority of songs on Rock Band are performed by the original artists -- but many songs on the game aren’t. MTV Games recently said one reason master recordings weren’t used in every case was that such recordings weren’t available. But it and Activision failed to disclose the extent to which the cost of using the original artists figured in their decisions and why they didn’t just use other songs when they couldn’t use versions by the originators.

Meanwhile, Activision was mum on claims that it was trying to squelch availability of a software patch for the PS3 version of Rock Band allowing the guitar peripheral for that game to work with Guitar Hero III. Harmonix and MTV Games “believe in an open standard philosophy of hardware and game compatibility,” a Harmonix spokeswoman said Thursday. “We think that there should be interoperability between music instrument controllers across all music games” because that is “clearly in the best interest of consumers, game developers and console manufacturers and will only help to grow the music game genre as well as inspire innovation and creativity.” Harmonix created the patch about two weeks ago, submitted it to Sony Computer Entertainment for approval, with release by Sony scheduled for Dec. 4, she said. But “Activision objected to the release of the compatibility patch,” which “remains with Sony,” she added. Harmonix was told the patch “will unfortunately not be released due to Activision’s continued objection,” she said, adding “as is the case with the Microsoft Xbox 360, we believe” PS3 users “should be able to use the peripheral of their choice” with Rock Band.