The Romantics have sued Activision over the inclusion of their song “What I Like About You” in the videogame Guitar Hero  Encore: Rocks the 80s. Get the complaint from the estimable Joe Gratz here. Activision licensed the musical composition from the songwriters, but instead of buying the rights to use the Romantics' version of the song, it used a cover version by Wavegroup Sound. The Romantics claim that this version sounds too much like their own – and that state law protects their distinctive sound from impersonation.

The Romantics brought the case under Michigan's right of publicity, the right of a person to control the commercial use of their identity. Most right of publicity claims involve the use of a person's likeness, but a recognizable voice can also get protection. For example, the Ninth Circuit has held that the impersonation of Bette Midler's voice in a commercial violated her right of publicity.

What complicates this case is its intersection with the Copyright Act. US Copyright distinguishes between a musical composition and particular recordings of that composition. It specifically provides for compulsory licensing of musical compositions, so anyone can make a cover song without getting the songwriter's permission. Further, Section 114 provides that copyright in a sound recording only extends to those particular sounds, not to imitations or sound-alikes. The Romantics couldn't bring this as a copyright infringement claim, so they're trying an end-run around the Act by calling it a right of publicity issue. The real question will be whether the Copyright Act preempts such a claim. (Here's a hint: it should.)