Activision/Infinity Ward: In-depth
Last week, I wrote a blog post that detailed the basics of the legal battle that is formulating between former co-heads of Infinity Ward Jason West and Vince Zampella and Activision. Since then, I’ve spent my time researching the situation in order to get a clearer view of the legal goings on. Closer inspection of the case revealed some interesting theories; sometimes creating more questions than they answered in the first place. Ultimately, however, while the suit appears to cover a multitude of issues, the entire case really hinges on only a few very important distinctions.
But first, an exploration of some of the less clear issues.
West and Zampella were contract workers, they are not “fired” so to speak, their contracts have been terminated. This fact will play a significant role in the lawsuit. Where a normal employee can be fired for almost any reason, a worker who is under contract can only be “fired” if that worker has voided any part of his or her contract. Activision launched an investigation of West and Zampella to find out if in fact either or both of them had preformed any conduct that would be in violation of their contracts.
According to the official Document of Complaint issued by West and Zampella (which can be found here at Kotaku), Activision’s investigation was thug-like, often forcing West and Zampella, as well as other Infinity Ward employees, into unusually uncomfortable and unnecessary conditions:
“Activision conducted the investigation in a manner designed to maximize the inconvenience and anxiety it would cause West and Zampella. On little notice, Activision insisted on conducting interviews over the President’s Day holiday weekend; West and Zampella were interrogated for over six hours in a windowless conference room; Activision investigators brought other Infinity Ward employees to tears in their questioning and accusations and threatened West and Zampella with ‘insubordination’ if they attempted to console them; Activision’s outside counsel demanded that West and Zampella surrender their personal computers, phones, and communication devices to Activision for review by Activision’s outside counsel and, when West and Zampella asserted their legally protected privacy rights, Activision’s counsel said that doing so constituted further acts of insubordination.” (West and Zampella DoC, p.10 par.32)
While no one can deny that Activision was putting severe amounts of pressure on West and Zampella, the fact is that their “outside counsel” found legitimate reasons for West and Zampella’s termination. On March 1st of this year, West and Zampella both received Notices of Discharge that contained in detail the grounds upon which their contracts were voided. When their DoC refuted these claims, it was very vague as to what the claims actually are:
“That Notice confirmed that the investigation was a charade. It contained charges that were disproved in the investigation; included events that West and Zampella were never even asked about during the investigation; identified conduct that other Activision executives engaged in with impunity; and cited ‘insubordination’ and alleged conduct from over a year ago, while West and Zampella were working on Modern Warfare 2, and that never led Activision to either investigate, or discipline them, or terminate them, but that, after West and Zampella delivered Modern Warfare 2 to Activision, the company now attempts to use as a basis to refuse to pay them what they have earned.” (West and Zampella DoC, p.10-11 par.33 ln.28-08)
Keep in mind that this is a Document of Complaint; an attempt to bring Activision to court. While this particular DoC has a lot of flowery language (and that will be addressed later on), its lack of detail is concerning. What exactly were the disproved charges? The unasked events? The conduct that had also been preformed by Activision executives? These are no small issues; these form the foundation of West and Zampella’s entire case against Activision, as they concern what they contend to be their wrongful firing.
It appears to me as though West and Zampella are hiding something, some piece of information that they hope to gloss over but in actuality is a legitimate reason for their termination. While this makes their case seem more filled with holes than evidence, there is something about it that strengthens their case.
West and Zampella are being represented by a legitimate law firm. O’Melveny & Meyers LLP is no small fish in the legal industry. Founded in 1885, O’Melveny & Meyers has been a part of numerous large cases, including representing such clientele as energy firms developing hydro-electricity in early 1900’s Los Angeles, military contractors during WWII, and the now Los Angeles Dodgers. The firm has an excellent understanding of California law, and is unlikely willing to take a case that it does not believe it can win. O’Melveny & Meyers sees something in the case that they can exploit if it goes to trial, or that they can use to pressure Activision into a settlement.
The language of the Document of Complaint is rife with irrelevant details about the success of Infinity Ward and West and Zampella. If you read through the entire DoC, chances are that by the end, you will feel as though West and Zampella are through and through victims of Activision’s greed. That’s just what they want you to feel. The DoC begins with a prologue that details the creation of Infinity Ward, starting with the Medal of Honor series all the way up until Modern Warfare 2. Each step of the way, the DoC speaks of Infinity Ward’s unprecedented success, both in critical acclaim and sales.
But, despite the success of their works, Infinity Ward itself has made little in comparison, the company having been purchased by Activision in 2002 for $5 million. The purchase itself is referred to with flowery language, alleging that in purchasing Infinity Ward, Activision “took advantage.”
Ultimately, these facts are of absolutely no meaning to the suit. This use of language is designed solely to gain public support for West and Zampella, and so far, it appears as though it is working, with some fans going so far as to claim they will never buy products from Activision again. However, when there is a Judge involved, chances are he won’t give a damn that Infinity Ward was purchased for $5 million when its games earned $3 billion, all he will care about is that Activision owns Infinity Ward, and rightfully so.
West and Zampella’s suit is thrown out before it makes it to court, on the grounds that the suit is baseless. I believe that this is a highly likely outcome. Chances of West and Zampella winning hinge completely on whether or not they were wrongly terminated, and I just don’t think they have any real evidence to prove that their termination was unjust, especially considering that they were unable to release specifics in their DoC. In this scenario, West and Zampella do not receive the money they were contracted to receive, as their contract is now void and they are owed nothing. Additionally, the Call of Duty and Modern Warfare franchises belong to Infinity Ward, which means that they belong to Activision. Any technologies developed for those games with also remain as property of Activision.
West and Zampella will be free to start a new studio, and they are very likely to do so; the publicity they have received over this suit is no small amount, and any game they produce in the future can be marketed as being from the original creative minds behind Medal of Honor, Call of Duty, and Modern Warfare, making it likely to get picked up by a big publisher. However, they will have to look out for future legal action from Activision, for either similarities of their games, or use of their technologies. Even so, they will be able to ride their popularity to continued critical and financial success.
While this scenario sounds like West and Zampella are getting jobbed, ultimately it can be a good thing. For the first time in years, they will be free from the demands of a parent company, and as stated in the DoC, West and Zampella were interested in creating new intellectual properties. This will give them a chance to do so with no strings attatched.
West and Zampella are awarded the money owed to them, but do not retain the rights to the Call of Duty and Modern Warfare franchises. This scenario can happen by either one of two methods: a settlement out of court, or by court order. I think the out of court settlement is the most likely. This scenario is identical to the one mentioned above, save for the fact that West and Zampella receive compensation for their work on Modern Warfare 2.
West and Zampella are awarded not only the money owed to them, but they retain the rights to the Call of Duty and Modern Warfare franchises not as the heads of Infinity Ward as detailed in the Memorandum of Understanding, but as individuals. Clearly the best possible option for West and Zampella. This scenario does not necessarily mean that Activision can’t continue to make Call of Duty games, just that if they do, they will require permission from West and Zampella as stated in the MoU, and will require Activision to pay them royalties even if they did not work on the game.
If Activision cuts ties with CoD and MW and decides to make new intellectual properties, they can face suits from West and Zampella if their games are similar in any way, or use technologies developed by Infinity Ward during their time with Activision.
In this scenario, West and Zampella will start a new studio and continue to make the games that made the pair successful in the first place, as well as any new IPs they want to produce. The publicity they will have gained from this outcome will only serve to increase attention to their products.
In the end, Activision is most likely to win this case, but that does not mean the end of good Call of Duty and Modern Warfare games. When West and Zampella lose this case (as I believe they will), Activision will not suffer any losses. Fans who scream bloody murder at Activision right now will hardly care in a year or two’s time when Modern Warfare 3 comes out. Their sales will not go down, nor will their publicity. Remember, any publicity is good publicity.
While I do believe that West and Zampella were treated maliciously by Activision, I can’t say that I agree legally with their claims. Even so, keep in mind that Infinity Ward, like any studio that makes it to the top, wont stay on top forever; the decision to terminate West and Zampella may make CoD suffer right now, but in the end, other new, fresh developers will take the stage and deliver great new products for the gaming community.
At the end of the day, you need the law on your side, and it’s unfortunate that West and Zampella do not have that, because the law always wins.