By James BrightmanEarlier this week, it was revealed that ex-Infinity Ward execs Jason West and Vince Zampella added two counts of fraud to their suit against Activision. The duo is also looking for a rescission of the Memorandum of Understanding agreement, and reportedly if they got a favourable ruling, they’d co-own the Modern Warfare brand, enabling them to release their own titles in the series. This is just never going to happen, insists Wedbush Securities analyst Michael Pachter (who also has two law degrees and is licensed to practice in California).
Pachter explained to IndustryGamers that the law simply wouldn’t allow West and Zampella to co-own the brand, as there’s no legal basis for it.
“West and Zampella have no prayer of obtaining control of the brand,” stressed Pachter. “They can claim that they were granted creative control, and there is a reasonable chance that they would prevail, but they lost that control when their employment was terminated. If they can prove their termination was wrongful, they will be entitled to damages, but there is no legal basis to award ownership of the brand to them. They could conceivably change their complaint and seek reinstatement as employees, but I haven’t seen any demands from them to make that happen.”
He continued, “As it happens, they have never claimed that they ‘own’ the brand; instead, they claim that they were granted creative control over the brand under their employment agreement. These are two completely different things. Their creative control was clearly intended to be in effect only while they were employees, and the day that their employment terminated, their creative control ended (made clear by Bobby’s alleged comment that “[i]t’s impossible for you guys to get fired”). Since they think that they were wrongfully terminated, they are pursuing a claim for damages, which would be the appropriate remedy.”
“There are two ways to be compensated when on the winning side of a lawsuit: the first (and most common) is a legal remedy for damages, meaning monetary compensation to replace whatever was lost; the second (and far less common) is an equitable remedy, where the court orders one party to do something. This is generally seen in employment cases when a person is wrongfully terminated and seeks their old job back. That is simply not what West and Zampella are seeking here. If they want their old jobs back, they can ask for them, but they didn’t do so. Instead, they are blending the two concepts of legal and equitable remedies, asking for damages and asking for control over the Call of Duty brand, but not asking to be reinstated as employees. The law just doesn’t allow stuff like that, as it would be unreasonable to require Activision to grant control over its valuable property to unrelated third parties.”
Pachter concluded, “I know this all makes for thrilling news, but they aren’t getting control over the brand, and they most certainly won’t ‘co-own’ it, as was widely reported by gaming news sites.”
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