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The music hasn’t ended just yet.
Bungie and chief executive Harold Ryan haven’t quite let go of the Marty O’Donnell affair. A week after an arbitrator issued a ruling that Bungie had to restore lost pay, lost profits, and confiscated stock to the former Bungie composer, the company’s lawyers have filed a legal response to the award.
After an 18 month legal fight, O’Donnell won an award from arbitrator Sharon Armstrong on September 3. She ruled that when Bungie fired the creator of the music for Halo and Destiny in spring 2014, it violated his contract. Now Bungie and defendant Ryan have fired off their own response to the order. The case appeared to expose a rift over creative freedom between Activision (the publisher of Destiny) and Bungie (the developer) as well as the rift between the CEO and the composer.
Interestingly, Bungie and Ryan do not oppose the order confirming and enforcing the award, which is considered final. Rather, they asked that the award be enforced to all parties, and in its entirety. O’Donnell’s legal counsel, Tom Buscaglia, said he thinks that Bungie is just trying to get a final jab in with their side of the story in the legal history, so that the press can write about it. In other words, the point of the filing appears to be that Bungie wants to say that O’Donnell’s epic win wasn’t as epic as he said it was, Buscaglia said.
“Bungie is attempting to use the Court case as a public forum to push their narrative. They have filed a 12-page response to Marty’s motion to enforce the final ruling that spins, slants, and at times flat our misrepresents the ruling,” Buscaglia said in an email. “This concludes with them agreeing with the motion by Marty’s litigator that an order enforcing the ruling is appropriate.
“So, the only reason for them to file this is to make a public record for the PR,” Buscaglia added. “The prior 10 pages of garbage is an obvious and transparent attempt at damage control by recasting the ruling as a huge win by Bungie. But, all they won was the ability to strip Marty of possessing or performing Music of the Spheres, his opus as a composer. They were not awarded any damages. They just made him give back all of his copies of the CD to the music he composed and recorded with Sir Paul, along with some t-shirts and coffee mugs.”
And Buscaglia said, “As far as I’m concerned, this ‘big win’ was nothing more than a petty vindictive effort to personally hurt Marty by using copyright law to take any right he had to the amazingly beautiful music that he spent over a year of his career making. They even made him return promotional copies of the Music of the Spheres CD. And now they want to trumpet this as this as a huge victory. Instead, I think this was despicable and they ought to be ashamed.”
Bungie notes that it won something in the arbitration as well. O’Donnell has to give back to Bungie any CDs of the music for Destiny — an eight-part orchestral suite dubbed Music of the Spheres — that he had in his possession. Part of the original dispute was that Activision dragged its feet in publishing the music, which O’Donnell worked on for a couple of years with ex-Beatle Paul McCartney.
Bungie’s counsel alleges that O’Donnell’s attorneys filed a motion to accept the award without taking up Bungie on an offer to file a joint acceptance. This seems like a small matter, but Bungie alleges that “O’Donnell refused to file jointly because he wished to frame the award as only grating him rights and remedies, framing he immediately used to wage a misleading public relations campaign against Bungie and Ryan.”
In other words, the Bungie filing is entirely about how the history recorded within the legal record should be perceived by the press. Bungie wants the CDs back, but the arbitrator confirmed last week that O’Donnell had stated that he had already returned those CDs. Those CDs came into O’Donnell’s possession because Bungie gave it to him, according to O’Donnell.
But the arbitrator ruled that Bungie did not gift them to O’Donnell. Bungie said it was trying to protect against violation of its copyrighted property. Bungie pointed out that it won a permanent injunction against O’Donnell in the copyright matter, and that O’Donnell’s release of some of the music exceeded that allowed under fair use rules.
Bungie said in the filing that O’Donnell did not prevail on any of his claims for declaratory relief on breach of contract, tortious interference or fraud, and he was awarded relief on an equitable basis under good faith and fair dealing. Neither party sought, nor was awarded, legal fees. Bungie also stated the award from the arbitrator did not grant O’Donnell everything that he asked for.
But O’Donnell did get an award of 192,188 vested stock shares that Bungie would have otherwise stripped from him. That’s 50 percent of the shares that he held at the time of his termination. He also received a fraction of the profit-sharing that he would have been entitled to if he had continued working in 2014, 2015, and 2016. (It’s not clear if he didn’t get the full number of shares because they were not vested or not, as Bungie doesn’t say). O’Donnell also received $142,500 in profit-sharing for his work in 2014. He gets 10 percent of profit-sharing for 2015, and 5 percent of profit-sharing for 2016, compared to what he would have received if he was still employed.
Bungie has a limited amount of time to determine how much O’Donnell’s shares are worth. That will be dependent on the valuation of the entire company, and it could be a lot.
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