Gibson Sues Makers Of Guitar Hero And Rock Band For Patent Infringement

Gibson is suing Activision, Harmonix, Electronic Arts, and MTV over alleged patent infringement over the companies’ involvement in Rock Band and the Guitar Hero series. The lawsuit is not over Guitar Hero’s use of the iconic Les Paul, SG, and Explorer guitars as controllers, but for violation of a decade-old patent for….drumroll please… “a method for simulating a live performance using a musical instrument, a 3D headset with stereo speakers, and a pre-recorded concert.” (US Patent 5,990,405) Gibson does not rock, at all…

It appears that Gibson has a tough battle ahead. Our sister blog Kotaku has been following this story since the litigation was announced a couple weeks ago, and they have posted statements from Activision and Harmonix, as well as Gibson’s rebuttal, which claims that the guitar maker tried to negotiate a licensing deal with the game companies, but could not reach an agreement. Sure to make things awkward is the fact that Guitar Hero, as mentioned, features heavy Gibson product placement, in the form of controllers, purchasable guitars in the store, and in-game ads during play. Rock Band, on the other hand, uses guitars from rival company Fender, which might be able to snag licensing in the next version of Guitar Hero if this lawsuit is not easily resolved and instead, through the fire and the flames, carries on.

Gibson lawsuit stories [Kotaku]
(Photo: Alex Chasick)

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  1. raleel says:

    Huh, funny, that controller sure isn’t a musical instrument. seems to me that their case will have a hard time getting by that the guitar shaped controller is not a musical instrument.

    then the patent also calls for a 3d head mounted display.

  2. mgy says:

    Guitar Hero is more popular than real guitars nowadays. Gibson will lose.

  3. SpenceMan01 says:

    Kudos for the GHIII reference at the end there.

  4. Franklin Comes Alive! says:

    Not only is Gibson suing the developers/publishers, they are suing Wal-Mart, Target, Kmart, Amazon, GameStop. and Toys R Us for selling the games.

    This is patent trolling at its worst. Not only did Gibson wait until the GH/RB fad got huge, it even SIGNED A LICENSING DEAL with one of the publishers, and then has the stones to sue everybody and their mother when they think the timing is right.

  5. pda_tech_guy says:

    @mgy: “Guitar Hero is more popular than real guitars nowdays. Gibson will lose.”

    First of all, you ovbiously dont play guitar. If you did you wouldnt even compare real guitart playing to guitar hero. Second, this lawsuit is not over guitar playing. Did you read the patent?

  6. Falconfire says:

    Gibson will lose because the company (and I say this as a buyer of only Gibson products for years) is a sad shell of it’s former self and deserves to die a quick death while every one of their current executives swing from a tree for ruining such a legendary company.

    Its guitar quality has seriously lacked while it has priced it’s self out of all but the dedicated few who continue to pay 3000 dollars for a guitar thats maybe worth 200. Its a name and a image now, and not the pillar of the guitar playing community it once was, having been overtaken by Ibanez, Dean and numerous other makers.

    They are more involved in remaking their landmark 3-4 guitar bodys, and litigating other companies even remotely involved in music than anything else these days.

  7. r081984 says:

    Nintendo better watch out. They might have violated the patent with Mario Paint on the SNES.

  8. Wormfather says:

    [blockquote]“…instead, through the fire and the flames, carries on.[/blockquote]

    I see what you did there. LOL.

  9. Wormfather says:

    why I used [] instead of I dont know.

  10. ptkdude says:

    As the inventor of “air guitar”, I am planning on suing both the video game companies AND the guitar manufacturers.

  11. Skankingmike says:

    You know they have been in discussion about these Patents for a while they didn’t “wait until they were popular” and while Gibson’s patents sound lame and vague, they will most likely settle out of court with these companies to maintain good standing.

    Look at the lawsuit between Sony and those guys who patented the Dual Shock, they’re still buddies ;)

    Lawsuits aren’t always done out of malice.

  12. FreemanB says:

    The biggest stopping point is that Gibson has been working with the companies for years now, making money off of the products. If they wanted to press a claim for this patent, they should have pursued it immediately. When they did not, there are only two conclusions a court could draw: Either the product did not violate the patent or Gibson consented to the use of the patent. Hopefully a competent judge will dismiss this case without a trial.(Unfortunately, that means there’s a decent chance it could still go to trial)

    Regardless of the legal aspects, Gibson’s patent is substantially different from the games they claim are infringing, as others have pointed out. Still, at least Gibson’s lawyers won’t go hungry this year. They’ll get paid despite the outcome.

  13. Sucko-T says:

    Consumerist needs to pit Fender vs. Gibson in the “Worst Company in America” contest.

    Fender: Buys every small guitar maker under they can find then closes all custom shops and moves production to Korea, Mexico or China. See Jackson, Tacoma, Hamer, Guild and Gretsch.

    Gibson: Sues video game manufacturer that they have product placement with and tries to sue Paul Reed Smith guitars for making a single cutaway guitar.

  14. Traveshamockery says:

    Gibson is so screwed. If I were Harmonix and company, I’d ask Gibson why they waited until the Guitar Hero II and III games were worldwide smash hits, instead of pursuing litigation when the first GH game came to market.

    It’s obvious this is a borderline frivolous lawsuit. Even if Gibson’s patent does in some way apply, they’ve granted an implicit license by allowing Guitar Hero games to be sold and marketed for so long without interference.

  15. Falconfire says:

    @Skankingmike: hardly. You didnt really look into that lawsuit your quoting are you. There was a ton of animosity against each other. So much so Sony tried to convince people that “vibration” was a passing fad when it created their PS3 controller only to eventually give up and license the patent, kicking and screaming while they did it.

  16. Alex Chasick says:

    @Sucko-T: Oh man, I didn’t know Fender owned Gretsch, too. That bums me out.

  17. tf5_bassist says:

    So terribly tragic, what’s happened to this company… :/

  18. mgy says:

    @pda_tech_guy: Let me break down your witty rebuttal into chunks, so you don’t miss my point so blatantly again.

    First of all, you ovbiously dont play guitar. If you did you wouldnt even compare real guitart playing to guitar hero.

    I’m not even sure where you got this from. When did I EVER compare real guitar playing to guitar hero? All I said was “Guitar Hero is more popular than real guitars nowadays”. Popularity has nothing to do with the mechanics or inherent value of playing. Do you really think me that dense as to compare real guitar playing and a videogame?

    Second, this lawsuit is not over guitar playing.

    Again, I didn’t say a thing about guitar playing. I said that Guitar Hero is more popular than guitars these days. Even if that is not true, which I have no way of knowing, the impression that I get is that Guitar Hero is insanely popular. A little hyperbole never hurt anyone.

    Did you read the patent?

    Yes, I’ve actually read it four times between Consumerist and Kotaku. But my comment did not apply to the specifics of the case. It only pointed out that it is unlikely that Gibson will get anywhere with their case because of the sheer popularity of these music games. There is no way that Guitar Hero or Rock Band will go away. That is all I said.

    You really need to lighten up though, man. You guitar purist guys sure are insecure about your craft.

  19. johnva says:

    Reading the patent, it doesn’t look to me like there is any real infringement going on. The controllers are NOT a “musical instrument” and they do NOT produce an “audio signal”. None of the stuff in the patent about “audio mixing”, digital signal processing, etc applies to these games, because they don’t do that. I admit I’m not a patent attorney, so there could be some stupidity applied by the courts that I don’t understand. But just reading through their “invention” in the patent, it doesn’t sound very much more than superficially similar to these games. While the concept is similar, the actual details are wholly different.

  20. Skankingmike says:

    @Falconfire:

    I was being sarcastic, sony is a bunch of scum bags that usually say one thing and do another. Look at their “Force Feedback” crap they pulled out of their ass at the last minute. And they of course didn’t want to pay for Rumble features to another company they had enough cost problems with an unproven Blue ray, like they wanted another Beta Max or even Minidisc player on their hands.

    And i read about this law suit that Gibson has a few months back. So they didn’t wait until now.

    Still law suits happen a lot between various corporations both small and large. Patent law is currently one of the biggest and hardest law fields to get into right now. A patent attorney is worth their weight in gold, i know a few that just recently got their LLM i don’t’ envy them.

    Perhaps Gibson didn’t know they had this Patent until some nerdy attorney found it.

    Whatever the case, why does this make them a horrible company in know what does this effect anybody here at all.

  21. ehrgeiz says:

    @pda_tech_guy: You must be one of those guys on youtube that makes fun of kids that record themselves playing guitar hero becuase they play the game better then most ever could, and if you can play guitar you most likely suck at the game. Oh well mgy already said everything I was thinking just wanted to get that out there.

  22. CPC24 says:

    I used to work for Gibson, and it was a dream job for about a month. After that, I realized it was just another depressing factory job. I finally walked out in disgust one day. This stupidity only makes me feel better about doing that.

  23. johnva says:

    @Skankingmike: Well, if frivolous patent lawsuits get out of control, then that could provide a chilling effect towards innovation. Who would want to produce any technology if they could just be sued for patent infringement by a dozen other companies who own vague patents that could possibly be construed as covering all kinds of stuff? The fact is, patents are becoming an anti-competitive tool in the technology business. They are undermining innovation instead of rewarding and promoting it. I think most of the blame for this situation lies with the government for granting vague patents in the first place and the courts for allowing patent litigation based on vague or obvious claims to go forward.

  24. Mayor McRib says:

    More importantly I think the whole patent system needs to be revamped. Currently a patent last for 20 years (14 years for designs). This is way too long, particularly in cases of technology. I really feel that if you haven’t developed a product that utilizes your patent in 5 years you should indeed lose it. Too many companies patent ideas solely to hinder competition or to piggyback for a handout for a successful product.

    Either way, I think Gibson in stretching here and has already received decent compensation for only providing their name and likeness for controllers (not instruments).

  25. m4nea says:

    What the hell is a 3D headset? If it’s a physical object I’m putting on my head, isn’t it assumed that it exists in three dimensions?

  26. Blinkman says:

    Aren’t there accusations that Gibson is completely full of crap and just stole the idea from Konami’s Guitar Freaks from the late 90s? Too bad Konami didn’t apply for a U.S. patent. =(

  27. WraithSama says:

    @Franklin Comes Alive!:
    I agree. It seems to me that once they got all the money they were going to get for the licensing with the games, they decided to double-dip for more money buy suing over this old patent. It also seems to me that they probably planned this all along. Not only do they want the licensing money, but now that the games are hugely popular and selling like crazy, they want a piece of that pie too.

    I find it abhorrent, though, that in addition to the companies that worked on the games, they’ve got the cajones to sue the retailers that sold the game as well.

  28. Skankingmike says:

    @johnva: I agree that Vague patents are bad and that all patents should have both prototypes and be extremely specific in their intent. However, we live in reality and this will probably never happen.

    In the end this really won’t do any harm to people who want to create new technology.

    The real problem is when people sell their patents to large corporations and the corporations do nothing with it. Like GM and alternative Engine types. That’s something to get angry about. Not law suits about vague patent laws. Let the Legal teams of all those combined companies battle it out.

    I’m just surprised Konami hasn’t tried to sue anybody, their known for that. [en.wikipedia.org]

  29. johnva says:

    @WraithSama: The fact that they’re suing the retailers certainly does make it seem like this is nothing but a transparent money grab. Actually, this is yet another huge problem with patent law as implemented in the U.S…there is almost unlimited liability and exposure to patent litigation. AND we allow people to sue for patent infringement years later instead of requiring them to assert a claim immediately.

  30. johnva says:

    @Skankingmike: I don’t agree at all that our patent system is not harming people who want to create new technology. Or do you mean that this specific case won’t cause harm, by itself?

    Fear of patent litigation discourages innovation in a lot of areas, especially when you want to compete with large corporations than own hundreds of thousands or millions of patents that could be thrown at you. Moreover, the litigation alone can be enough to wreck small companies or individuals. Defending such lawsuits can be extremely costly and a lengthy process because it’s such a complex area of law.

    My opinion is that if the patent office doesn’t have the resources and is unwilling or unable to get the resources to truly limit patents to narrow, specific, and non-obvious claims then they shouldn’t grant patents at all. We would be better off without patents than with a system that allows patents and horribly expensive “war of attrition” lawsuits over vague claims.

  31. Badgz0r says:

    This may be a dumb question, but: Isn’t there a statute of limitations or some variety of “lifespan” on patents? I thought the patent would have been null and void after a certain period of time, opening the floor up to anyone who wanted to adapt the idea. (I believe I’ve read articles about similar litigation involving software.)

  32. @Mayor McRib:

    Currently a patent last for 20 years (14 years for designs). This is way too long, particularly in cases of technology.

    Unless you’re Disney, in which case it’s however long you can keep paying the lobbyists…

    /Dean Guitars FTW!

  33. johnva says:

    @BaysideWrestling: To be fair, it’s copyright law that is bought and paid for by the Disney Corporation, not patents. Or is there something else I’m unaware of?

  34. harshmellow says:

    @WraithSama: @johnva: It does seem like a money grab that they are also suing the retailers, but in my experience with lawsuits, this happens all the time. Many times, the retailers get themselves dropped from the suit. I have done work on tobacco lawsuits where the plaintiff (an individual) was suing the tobacco companies, and included in the suit were convenience and grocery stores where they bought the cigarettes. In all those cases, the stores got removed from the lawsuit before the trial even started…

  35. mike says:

    Is it just me or does any real guitar player have no respect for those that play guitar hero?

    Seriously, I don’t get it. Guitar isn’t that hard to learn.

    /Didn’t read the article.

  36. mgy says:

    @sohmc: It’s true, guitar players always seem to have this obnoxious, holier-than-thou attitude towards those who play guitar hero.

    Here’s the point they’re missing: guitar hero players don’t play it as a replacement for playing real guitar. They play it because it is a fun game.

    In the same way that I don’t play FIFA as a replacement for playing real soccer or NCAA as a replacement for playing real football, or DDR as a replacement for real dancing.

    It’s a game, guys. Everyone knows that.

  37. pda_tech_guy says:

    @mgy: LOL. I must have missed all of that. Go figure. I guess in general, guitar hero is more popular. i was thinking with my insecure guitar purist brain. As a guitarist, I would never consider pushing puttons on a fretboard as popular as the real thing.

    However, even if Guitar Hero is more popular than playing real guitar, how can you argue that Gibson will loose? Dont get me wrong, im not a big Gibson fan, and Im not trying to defend them, but this patent infrigement lawsuit is not over guitars at all. Did Guitar Hero infinge on this patent by simulating a concert on a video device where you can play along, or did they not?

  38. pda_tech_guy says:

    @ehrgeiz: I dont comment on youtube (much). and I have never played guitar hero, but if I did, I dont think I would be very good at it.

  39. pda_tech_guy says:

    @mgy:Just commenting on your response to sohmc. Most kids I know who play guitar hero think they can play guitar. Then they pick one up and are slapped in the face by how guitar hero and playing real guitar is nothing alike.

    And by the way, the comment I made about comparing real guitar with guitar hero wasnt meant as a dis to anyone who plays guitar hero.

    @sohmc:Playing power chords on a guitar (strumming two strings at a time) is not difficult to learn. Playing guitar is difficult to learn. And for the record, playing guitar hero is probably easier to learn than playing guitar.

  40. johnva says:

    @pda_tech_guy: I’ve never even heard of anyone thinking they can play real guitar because they can play Guitar Hero. The two have nothing to do with each other, and yes, I think real guitar is much more difficult. It’s two entirely different skills.

    And looking at the patent text, it seems like it’s only loosely related to what these video games do. The idea is similar, but the details are totally different.

  41. irid3sc3nt says:

    @mgy:
    I thought the comment was funny. It reminds me of the South Park episode.

  42. Pro-Pain says:

    These Gibson people are arrogant. Their guitars are totally overpriced/hyped. I would think they would appreciate the extra advertising. You want a great playing and awesomely priced guitar, buy a Schecter.

  43. Mi1ez says:

    Um… doesn’t Guitar Freaks pre-date their patent application?

  44. jimconsumer says:

    @sohmc: Is it just me or does any real guitar player have no respect for those that play guitar hero?

    I am a real guitar player. I’m probably better than you. And I fucking love Guitar Hero and Rock Band, so quit being a self riotous prick. You are not better than people who play fantasy video games just because you play the real thing.

    Do you fly around the world playing venues in front of thousands of screaming fans? Nope, and neither do I, but I can simulate it, and you know what? It’s crazy fun.

  45. kyle4 says:

    I’m pretty sure that Gibson’s patent involved using a “real guitar” to play a long to a “performance.” Even so, they are going to lose because they put their name on the Guitar Hero products. To turn around and do what they are doing is to just be leeching for more money.

  46. kyle4 says:

    I’m pretty sure the patent they filed involved playing a “real guitar” alongside a “performance”. That completely differs from what Guitar Hero and Rock Band are doing. Even so, Gibson is sure to lose this case based solely on the fact that they put their name on numerous Guitar Hero products. They are just leeching for money now and that’s pathetic.

  47. drjayphd says:

    No pitchers were harmed during the filing of this lawsuit. Except one. Joel Zumaya. He had it coming.

  48. Alex Chasick says:

    @jimconsumer: Along those same lines: athletes love to play fantasy sports. Each is enjoyable for its own reasons.

  49. Skankingmike says:

    @johnva: I meant this particular Case.

    I just don’t see how this is a consumerist issue, that’s all.

    We as consumers do not really need to worry about Patents. The advancement of technology will happen whether or not somebody infringes on somebody elses patent or not. If not here in America then in some other country.

  50. jimconsumer says:

    @Alex Chasick: Exactly. Besides, even for those who don’t play the real thing, so what? Just because someone likes the video game doesn’t mean they want to do it in real life. I like playing GTA, too, but I don’t want to rip off cars, run from cops and shoot people. These “you lamers, it’s fake” people are idiots. Of course it’s fake. That’s the whole fucking point. Players don’t think they’re real rock stars any more than FPS players think they’re real snipers. We’re just having fun. Deal with it, people.

  51. TruPhan says:

    Can Consumerist or Kotaku purchase the court transcripts on this one? I would LOVE to read Gibson’s argument on this (similar in the fashion that GamePolitics covered the Jack Thompson trial.)

  52. nobodyman says:

    @Skankingmike: Really? Consumers don’t have to worry about patents? Sorry, but patent abuse most certaintly has an adverse effect on innovation, and that is something that consumers should definitely be concerned about.

  53. superlayne says:

    I actually can play a little bit of a real guitar, and play guitar hero myself. The game is much different from the instrument, and I understand that. I’m sick of hearing other guitarists bitch about the game. It’s a simulation, which implies instant gratification. Just stop whining and laugh at how easy the game makes it look.

  54. Skankingmike says:

    @nobodyman: Not really,

    Did patent abuse effect PS2 controller sales? no nor did it stop people from enjoying the PS2. In fact the PS2 controller is arguably one of the greatest controllers since the SNES controller. (which is what the original PS1 controller was modeled after or so people like to point out).

    Does Patent, Copyright, and Trademark infringement cause consumers to to not buy those things? Not if New York China town is any indication or even Ebay. People would rather have it look and sorta act like the product than for it to actually be the product.

    so again Patent infringement in and of it’s self only effects the companies that hold that patent in lost revenue. that is all.

    I love how people who never held a patent on anything love to point out that patents hurt the innovation process. When somebody actually shows me proof that we’ve slowed down in creating and expanding our technology I’ll gladly take back the comment.

  55. benjaminsnap says:

    @Sucko-T: Ya Fender owns a bunch of other companies. So what. The product Fender produces is rock solid. Even their low level brands are well made. And you know why. They are a employee owned company, there is alot of heart that goes into the guitars they make.

    Besides almost all brands of guitars are made in the same factories to those manufactures specs. I’ve been working in the music industry all my life and i’ve seen the quality from over sea’s really improve. Give me a Korean made Squire over a USA made Gibson piece of shit any day.

  56. Android8675 says:

    I loved this when I first heard it, classic frivolity. I hope Gibson chokes on their own bile as the judge takes their patent and shoves it down their throats.

    I’m SHOCKED they didn’t go after Konami/Bemani for Guitar Freaks. That game came out years before Guitar Hero/Rock Band.

    Oh, but Guitar Freaks wasn’t as popular in the US, now that GH/RB is gettin’ paid, it’s time for Gibson to get their “fair” share. I love your Guitars Gibson, I have an old acoustic that used to be my Grandmothers, but damn guys, leave the “air guitaring” to the professionals.

  57. RonDMC says:

    @sohmc: Is it just me or does any real guitar player have no respect for those that play guitar hero?

    It’s just you. What you’re describing is an unnecessary, snotty faux-elitism a small group of guitar players have adopted. I’ve played the guitar for 10 years, and I love Guitar Hero. It’s a fun game. Also, if it inspires someone to pick up the guitar and learn it, it’s helping out music, too.

    The Guitar Hero series is insanely popular and widely adopted by many musicians and guitarists. Many of the bands featured in the game have described their love for it and experience with it, including Slash and Joe Perry.

    In fact, real guitarists like Joe Perry “hate” it so much they have teamed up with the developers to create a special Aerosmith Guitar Hero spin-off game.

    So, again, it’s just you.