What The Romantics Don't Like About Guitar Hero

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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. )

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