Wannabe musicians: now the exclusive legal domain of Gibson Guitar? Photo: Unhindered by Talent.

Are you making music without real acoustic instruments? You know, in, like, virtual reality? Then you may have stepped into a strange, alternate dimension. Let’s call it, for the sake of argument, The Gibson Zone. They control the horizontal. They control the vertical. They invented what you’re doing … right now.

Or, at least, that seems to be the message sent by a recent patent dispute between Gibson Guitar Corporation and Guitar Hero developer Activision. (Harmonix, the original Guitar Hero developer, has moved on to Rock Band.)

I know what you’re thinking: maybe Gibson claims to have invented the guitar, or the Guitar Hero controller looks a little too much like an Epiphone or something. Ah, but that might actually make some sort of logical sense, and this is the topsy-turvy world of intellectual property. In fact, both Harmonix and Activision already have licenses with Gibson for their guitars.

Instead, Gibson is arguing they own the rights to anything that can “simulate participation in a concert,” which they patented in 1999. (Look out, air guitar lovers.) Now, I don’t claim to be an expert in patent law, but being the layperson that I am, I would assume the original Gibson patent would have some passing similarity to Guitar Hero.

System and method for generating and controlling a simulated musical concert experience [Google Patents]

Well, let’s review. The Gibson patent is described as follows:

“A musician can simulate participation in a concert by playing a musical instrument…”

Okay, with you so far.

“…and wearing a head-mounted 3D display that includes stereo speakers.”

Nope. Lost. They do know that Guitar Hero is not available for Virtual Boy, right?

If this were how you played Guitar Hero, Gibson’s case might have some merit. Nintendo’s failed Virtual Boy, as photographed by Tim Lambert.

“the musical instrument generating an instrument audio signal at an instrument audio output, the instrument audio signal varying in response to operation of the instrument by the user of the system;”

Okay: musical instrument, check. “Instrument audio signal?” No, not in Guitar Hero.

“a video source providing a source video signal at a source video output, the source video signal representing a video portion of the pre-recorded musical performance

a video display responsive to the source video signal whereby the user can view the video portion of the pre-recorded musical performance on the video display.”

To the extent that Guitar Hero involves a TV, yes. Pre-recorded musical performance? What? I’m lost again. In fact, what exactly is Gibson describing here? Playing your guitar while watching an old Pearl Jam concert DVD? With goggles on your eyes?

“an audio source providing a source audio signal at a source audio output, the source audio signal representing an audio portion of the pre-recorded musical performance, the audio portion including an instrument sound track containing pre-recorded musical sounds that would be generated by the musical instrument in the pre-recorded musical performance”

At this point, I think Gibson is patenting sound itself. Or, at least, karaoke, which as I recall had already been invented in 1999.

a system interface device having a first audio input electrically connected to the instrument audio output, a second audio input electrically connected to the source audio output, and a first interface audio output;

More damning evidence, except for the fact that Guitar Hero doesn’t have an audio interface.

And, still more:

f. the system interface device including a source audio control circuit responsive to the instrument audio signal, whereby a characteristic of the source audio signal is controlled in response to operation of the musical instrument by the user to provide a controlled source audio signal at the first interface audio output; and
g. an audio playback transducer responsive to the controlled source audio signal such that the user can listen to the audio portion of the pre-recorded musical performance on the transducer, in synchronization with the video portion.

Back to my first theory. This, followed by lots of talk about audio signals and audio portions and “video disc machines” still seems to involve you playing your Pearl Jam DVD karaoke-style with a guitar. In other words, both wholly un-patentable, and wholly unrelated to Guitar Hero, an interactive game with computer-generated graphics and a controller with buttons not audio.

It’d be a bit like if the guy who invented the paperclip claimed patent rights for deep sea fishing. But, as I said, this is patent law — so that may be possible.

Now some visual evidence:

gibsonvr

Keeping in mind that what you’re looking at involves audio signal, not the control input of a game controller, from that guitar, I’ve provided this marked-up version, removing the stuff not in Guitar Hero:

 

gibsonvr_markup

But Gibson does have a point. To the extent that Guitar Hero involves:

  • sound
  • image
  • people pretending to be musicians
  • something shaped like a guitar
  • an on/off switch

…Guitar Hero is a dead-ringer, patent-violating copy of what they described in 1999. Then again, so is a group of stoners playing air guitar Pink Floyd to The Wizard of Oz.

‘Guitar Hero’ Subject of Patent Dispute [Associated Press, via Wired.com]

  • http://www.toilville.com peter

    I still waiting for Max/Msp Hero.

  • Goobs

    Gibson will win the case, inherit Guitar Hero, and kill it like all the other great products they buried.

  • http://www.createdigitalmusic.com Peter Kirn

    Hmmm, now that you mention that, anyone up for a game of Studio Vision Pro Hero?

  • http://hauntedshit.com/events/stackinpaper3/ KEEB$

    Hahaha, great article and analysis, especially the virtual boy! Man, I wanted one of those so badly.

    This lawsuit would sort of make sense if Activision was a start-up company, because then Gibson could just throw 10 million at a lawsuit and Activision would have to pay up or get buried in legal fees. But considering that Activision has plenty of cash and Guitar Hero's already on its third incarnation, I highly doubt they're going to roll over on this BS claim.

  • http://www.kentsandvik.com Kent Sandvik

    Sigh. No Gibson gear I will purchase in future, that's for sure.

  • eric

    yeah, I'm afraid this is the kind of BS that calls for boycott action.

    My boycott of U2 for their plagiarism lawsuit has sure been successful. And someday Wal-mart too shall fall.

  • http://kimlajoie.com Kim

    "I still waiting for Max/Msp Hero." Damn you Peter, I almost disturbed the gentle quiet of my office with raucous laughter!

    Back on topic: Maybe there can be a "Modular DSP Design Hero", with different levels:

    Easy: Reason

    Medium: Reaktor/SynthEdit

    Hard: Max/MSP

    Nightmare: Windows Notepad and a C compiler

    -Kim.

  • PetitZozo

    Weren't all Harmonix games based on Konami's Beatmania and Guitar Freaks in the first place anyway? It's not like they did anything original actually…

  • http://createdigitalmusic.com Peter Kirn

    Beatmania has a different game mechanic .. at that point, you might compare any of these games to the rhythm toy Simon, etc. Guitar Freaks is similar; Harmonix were presumably inspired by some of the late 90s games. But their own development experiments go back before those, and it's safe to say that, while Konami was at the forefront, ther was a lot of development around the same ideas — as is the nature of the gaming industry (and the taste, generally, of the gaming public). You've got different developers riffing (excuse the pun) on the same concept.

    Of course, the irony is that the Gibson patent doesn't really describe a game, and comes as much as 2-3 years after these games were popularized in Japan. This almost seems to me like a PR stunt for Gibson they can pretend to have been on the forefront of gaming. They weren't.

  • Gobblebox

    HAHAHA THIS MADE ME LOL

    NOW ON TO EBAY TO SEE WHAT VIRTUAL BOYS RUN FOR THESE DAYS

  • MonksDream

    The mind boggles. This is nothing more than the pipe dream of Gibson's lawyers who see someone else making a lot of money and figure they can extort a cut. It's predatory and shameful.

    Unfortunately it could tie up resources that would be better put to making other, more entertaining, games. For a recent parallel see SCO vs. Linux. Thankfully SCO's claim was determined to be bullshit too, but it took years. Let's hope this doesn't last as long.

  • naju

    The claims in the patent are the important part when it comes to whether something is infringing. If you look at claim 1, it's kind of broad – it doesn't mention 3d headsets or anything. If you squint, it almost might apply to Guitar Hero.

    But you're right about the audio signal problem. Not sure about prior art (filing date was July '98, Beatmania was released Dec '97, and there's a one-year grace period for patent holders). It'll probably just settle anyway.

  • http://www.thefruittree.info Anto

    Geberally I just use my electric guitar. You can't beat real life instruments hey!

  • James

    This just screams publicity stunt – lets face it, the patent and copyright courts have had countless cases that seemed completely unbelievable, but resulted in much publicity for both sides. Is it going to cost Gibson much in the way of lost revenue? not likely; if you're gonna buy one, then this will probably not put you off. On the other hand, for activision to be caught up in a lawsuit with the legendary Gibson; that is priceless advertising via news sites like this and others for guitar hero!

  • bliss

    I'll just say briefly that Karl Marx predicted this.

  • http://www.professorwhimsey.com Dr. Apostrophe X

    What's more interesting is one of the patents it references: [Google] R.S. King's PLAYER PIANO WITH SLIDE DEVICE. Mr. King seems to have invented the CD+G karaoke machine, 17 years before the CD was invented!

  • http://www.createdigitalmusic.com Peter Kirn

    Wow. That R.S. King thing is what I CALL invention. A vacuum-powered slide projector connected to a mechanical player piano for player piano karaoke? I believe Mr. King's patent has now expired, so who's up for making one of these?

  • gains

    Wow. I guess they've taken to heart all the arguments that wannabe rockers will just play Guitar Hero instead of buying a real guitar.

    But, can you score chicks by playing Guitar Hero? All the best guitarists I went to school with were using the instrument to get fans or serenade the ladies and bypass their unattractiveness. That's just personal experience though. No slight intended against you handsome guitarists.

  • http://dublab.wordpress.com dlab

    Man, that's sad. This is what happens when corporations start letting lawyers run the show. Luckily, this probably won't get too far. And for all of Gibson's stupid moves lately I'm definitely not getting rid of my Les Paul anytime soon.

  • redrhino

    Baaaaaahhhhhh haaaaa haaaaaaa haaaaa …… yeah right…. haaaaaa

  • redrhino

    Soon Gibson will want to collect royalties from everyone that rocks out at a concert… when you rock out during the show, you're 'simulating playing the guitar.' …. well? Let's see them try that in Cali

    … Honey, get the popcorn, Doritos, and Big Red… this is gonna be a good one…

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  • http://dk codeman

    nick fuckervento r u there

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  • Eric Singer

    I realize this is a really old post, but, Peter, an interesting story might be the history of Gibson’s wanton abusive patent bullying as well as acquisition and subsequent destruction of innovative electronic music companies and technologies (Opcode, Zeta, Oberheim, ZIPI…), the next time Gibson does something egregious.