They're blending two "legal and equitable remedies" as they ask for damages and control of the Call of Duty IP, of which the law "just doesn’t allow".
West and Zampella were granted creative control over the Call of Duty franchise which would only stand whilst they're employed by Activision, which is different from ownership. "West and Zampella have no prayer of obtaining control of the brand," he said.
"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," continued Pachter.
"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 "it'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," he explained.
"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."
"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."
West and Zampella are currently in a publishing agreement with rival house EA, of which Activision also accuse of making this whole debacle even worse.
Pachter: West and Zampella "no prayer of obtaining" Call of Duty
06 April 2011 | By Simon Priest