Axl Rose might not like the fact that "Guitar Hero III" featured his former Guns N' Roses band-mate Slash on the front cover, but he might have objected too late.
At a summary judgment hearing Thursday, Los Angeles Superior Court Judge Charles Palmer reportedly indicated that he is inclined to dismiss Rose's $20 million lawsuit against Activision Blizzard for fraudulently inducing him into authorizing "Welcome to the Jungle" for use in the popular video game. At the conclusion of the hearing, according to an attorney involved in the case, the judge took the matter under submission.
In the lawsuit, Rose claimed he was told during negotiations that the game wouldn't feature any reference to Slash, the guitarist with whom he has been famously feuding for two decades.
The possibly fatal problem for Rose was not moving soon enough on the allegations.
The singer's lawsuit wasn't filed until late November 2010 -- more than three years after the game October 2007 release. Rose has had difficulty claiming that he didn't discover the problem at an early stage. According to documents filed in the case, Rose's agent sent Activision an email objecting around the time the game came out.
During the course of the case, Rose attempted to explain why he hadn't filed a lawsuit right away.
"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,'" he said 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."
Originally, Rose sued for fraud and breach of contract, and in August, the judge struck the fraud claim because of the statute of limitations issue. That ruling came despite arguments by Rose's lawyer that the claims did not accrue until he discovered that "Activision had been intentionally concealing its plans to use [Slash's post-GnR band Velvet Revolver] and Slash in the game all along."
What was left was deciding the contract issue -- and the parties disputed the form that contract took.
Rose's attorneys pointed to emails to Activision by Wayne Milligan, a licensing administrator at Sussman & Associates who does work for GNR Music, which administers publishing rights to the band's songs. The rock star's position was that there was a written agreement not to include Velvet Revolver songs and that as a result, Rose had four years to file a lawsuit.
But Palmer is inclined to rule that the agreement relied at least on oral promises and was subject to a two-year statute of limitations. "The only extrinsic evidence supports Activision's interpretation and does not support Rose's interpretation," the judge ruled in a tentative order that was recorded by a legal newswire.
A full decision should be coming within weeks.
Rose's legal team is led by Skip Miller at Miller Barondess, Activision's legal team is led by David Steinberg at Mitchell Silberberg & Knupp.