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The Romantics sue Guitar Hero for sound-alike imitation

Cover version was too close to original

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Detroit rockers The Romantics are suing the companies behind the PlayStation game Guitar Hero over the use of one of their songs. The lawsuit does not cite copyright infringement, though. Instead, the complaint is that a cover version is too accurate.

The lawsuit against Activision Publishing and others describes "the intentional misappropriation of [the band's] identity and persona and imitation of their distinctive sound as the well-known and highly-successful band 'The Romantics'".

The band seeks damages and an injunction that, if granted, would remove the game from shops.

It targets the game Guitar Hero Encore: Rocks the 80s, one in a series of wildly-popular Guitar Hero games. In it, players hear famous songs and play along by hitting buttons that represent notes on a guitar-shaped controller or a standard controller. Players win points for hitting the right notes.

The Romantics' multimillion-selling hit "What I Like About You" is one of about 30 songs in the Rocks the 80s game. According to an interview in USA Today with the band's attorney, William Horton, Activision secured the rights to record a cover version of the song. But the lawsuit argues that the cover version is so close to the original that it infringes other rights.

According to the lawsuit, the band "were informed by fans that the game contained the song as performed by plaintiffs. However, after reviewing various royalty statements and making other inquiries, plaintiffs learned that the song was not the master as recorded by them."

The song used was a "sound-alike imitation" recorded by another defendant, California-based WaveGroup, according to the lawsuit. A WaveGroup executive is quoted in the lawsuit saying that the company tried to make the songs on Guitar Hero "as true to the originals as possible"; and tried to "create the illusion" that they are the original.

The game has been promoted with a video of the song under the banner, "What I Like About You as made famous by The Romantics", according to the claim. "In the music industry, the phrase 'as made famous by' typically means the song is not the master recording, but rather an imitation," states the lawsuit.

It adds that "none of the defendants have the permission of plaintiffs to perform a sound-alike imitation of the song". But it does not assert copyright infringement, and Horton told USA Today that Activision has permission for a cover version. Horton's argument is that Activision should have secured a master licence for the original recording and paid royalties, according to the newspaper.

Instead, the lawsuit cites violation of a right of publicity, including injury to the band's "identity, persona, and distinctive sound".

It also says that the identity, persona, name and distinctive sound "constitute a famous commercial trademark" under the US Lanham Act. That Act prohibits the use of a mark in a way that is likely to deceive consumers. The lawsuit says the use of the song is "confusingly similar" to the original and "implies that plaintiffs associate, sponsor, approve, or endorse the game".

It also claims that it dilutes the plaintiffs' trademark "by blurring, tarnishment, and other means".

Unfair competition and unjust enrichment are also cited.

However, William Patry, a US authority on intellectual property rights, suggests that the band might struggle in its claim. In a blog posting, while acknowledging that he had not seen a copy of the complaint, Patry cites a provision of copyright law that he says encourages the making of sound-alikes.

"For example, in the sound track to the movie Easy Rider, the band would not permit use of their song 'The Weight', so the label hired [another band called] Smith to copy the band's performance as closely as possible," writes Patry. "No cause of action was available for this, the mechanical royalties having been paid. In the Activision case, a sync license was obtained for reproduction of the song."

Patry said that he does not know the facts of the case. But he added: "It seems that the complaint is less about the fact of the imitation – which is absolutely privileged by federal law – and instead about passing off issues."

See: The complaint (11 page/318KB pdf)

Copyright © 2007, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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