Slash Not Welcome in the Jungle: Axl Rose Sues Activision Over Use of Slash's Image in Guitar Hero III

Axl Rose is suing Activision for $20 million for allegedly breaking its promise not to include images of Slash, his former band mate in Guns N’ Roses, in Guitar Hero III. Mr. Rose claims that this promise was a condition of his granting Activision a license to use the song “Welcome to the Jungle” in Guitar Hero III. This promise was allegedly in the form of a written agreement in a series of emails. An animated version of Slash appears on the cover of the videogame. The suit claims fraud and breach of contract amongst other causes for relief.

It may be difficult to prove breach of contract due to the parol evidence rule. The parol evidence rule concerns what can be admitted as evidence when the court considers a contract. California’s parol evidence rule states that “[t]erms set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement . . . .” Cal. Civ. Proc. Code § 1856(a) (2007).

A full parol evidence analysis is beyond the scope of this blog entry, and would require a copy of the contract, all relevant material, and the actual complaint; therefore this blog post will concentrate on just one limited aspect. If the court finds that the parties had a contract that was a “writing intended by the parties as a final expression of their agreement,” that will affect the admissibility of evidence of a prior agreement. If the email agreement to not use Slash’s image was made prior to the contract, that agreement will not be admissible as evidence to contradict the contract.

Prior agreements can, nevertheless, be admitted to show fraud. Under California law, the key language which defines fraudulent deceit is “[o]ne who willfully deceives another with intent to induce him to alter his position to his injury . . . .” Cal. Civ. Code § 1709 (2009). Deceit is defined as:

1. The suggestion, as a fact, of that which is not true, by one who does not believe it to be true; 2. The assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true; 3. The suppression of a fact, by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact; or, 4. A promise, made without any intention of performing it.

Cal. Civ. Code § 1710 (2009). In order for Mr. Rose to succeed with a fraud claim, he will have to prove that Activision purposely deceived him with the intention of getting him to license “Welcome to the Jungle” to Activision. Fraud cases are often difficult to prove, as there is rarely a “smoking gun” to show the fraudulent intention, and instead, must often rely on the fact-finder to impute intent based on circumstantial evidence. Yet, the fraud claim may wind up being stronger than the breach of contract claim because the parol evidence rule can absolutely bar evidence from even being considered at trial.