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 trade mark" 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' trade mark "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."
