November 22, 2007

Romantics Detail What They Don’t Like About Activision

As commented upon by Michael Madison, the Romantics have filed suit against Activision, alleging that the version of “What I Like About You” included in the Guitar Hero Rocks the ’80s video game (for which Activision got a license from the songwriters) sounds too much like the original recording.

In their complaint, available here as a PDF, the Romantics allege three counts: violation of the right of publicity, a somewhat vaguely outlined Lanham Act claim, and unjust enrichment. They can’t allege copyright infringement, since the defendants licensed the underlying musical work, and the copyright in a sound recording does not extend to recordings that merely consist of sounds that “imitate or simulate those in the copyrighted sound recording,” under 17 U.S.C. § 114(b).

The publicity claim would seem to turn on whether the Michigan common law right of publicity protects against vocal impersonations, as the Ninth Circuit held California law did in Midler v. Ford Motor Co. – and whether the court feels like having another crack at the thorny preemption issues raised by the interaction between such a common-law right and Section 114(b) of the Copyright Act.

UPDATE (20 December 2007): The Detroit Free Press reports (via Bill Patry) that the Romantics’ motion for preliminary injunction was denied. No written opinion is available as of this writing. The denial of a preliminary injunction doesn’t mean the case is over, only that Activision can keep selling the game while the suit is ongoing.  Perhaps the court felt that pulling Guitar Hero off the shelves this holiday season would cause too much strum und drang.

November 9, 2007

Followup on § 2257

I’ve received a number of emails asking for basic information about the ramifications of the Sixth Circuit’s decision in Connection Distributing case, discussed here.  I can’t say what the decision means for any particular person, but here are some helpful facts:

  • Who is this “Sixth Circuit”? The decision was issued by a three-judge panel of the United States Court of Appeals for the Sixth Circuit. The Sixth Circuit encompasses Kentucky, Michigan, Ohio, and Tennessee.
  • What happens now? The government can ask for rehearing by the full Sixth Circuit court sitting together (or “en banc”). If rehearing is denied, the government can ask the Supreme Court to review the case. In very few cases is en banc rehearing or Supreme Court review granted — but in very few cases does a Court of Appeals declare a federal statute unconstitutional. If the Supreme Court decides to review the case, its decision would have nationwide effect.
  • What does it mean if rehearing en banc and Supreme Court review are denied? It will mean that federal district (trial-level) courts in Kentucky, Michigan, Ohio, and Tennessee, as well as later three-judge panels of the Sixth Circuit Court of Appeals, will have to abide by the ruling.
  • What does it mean for jurisdictions outside Kentucky, Michigan, Ohio, or Tennessee? As a formal matter, not much. But federal courts look to other federal courts for guidance in deciding their cases, and no Circuit (other than, arguably, the D.C. Circuit) has affirmatively found Section 2257 to be constitutional. Other courts may look to Connection Distributing as a persuasive authority in deciding future cases about the constitutionality of Section 2257.

My practice doesn’t include any 2257 work, and I can’t help you with your recordkeeping compliance. But I hope that the above helps clarify what the Sixth Circuit’s decision means (and doesn’t mean).

November 4, 2007

Join the ABA IPL Special Committee on the DMCA

This year, I’m co-chair of the American Bar Association Section of Intellectual Property Law Special Committee on the Digital Millennium Copyright Act. My co-chair is Kate Spelman of Cobalt LLP, and we have a great deal planned for the coming year. If you’re an ABA member, I encourage you to join the Section and the committee. Both are filled with thoughtful, engaged lawyers who care about the development of the law.

This year, Kate and I are hoping the committee will study and propose ABA policy on a number of issues, including:

  • the two sets of “principles” for user-generated content sites that were recently promulgated (1 2);
  • the international effect of notices sent pursuant to 17 U.S.C. 512; and
  • the Federal Circuit’s 2004 holding that plaintiffs in anti-circumvention cases brought under 17 U.S.C. 1201 must show that the circumvention they allege has facilitated copyright infringement.

If these issues sound interesting to you, join our committee! If you’re already an IP Section member, you can join in just one click from this page. If you’re an ABA member but not an IP Section member, go here first to join the IP Section. If you’re not an ABA member, start here.

Kate and I are looking forward to a great committee year. I’m writing this on a flight home from the IP Section’s Fall Leadership Meeting in Chicago, where all of the committee chairs met to discuss their committees’ plans. If the DMCA committee doesn’t ring your bell, take a look at these other committees; many of them have some fascinating plans for the year.

A Full Day of Legal Blogging Events on November 5th

A programming note. Tomorrow, November 5th, I’ll be honored to participate in a lunchtime panel at Stanford Law School with four highly-regarded law professor bloggers (Ann Althouse, David Friedman, Eric Goldman, and Larry Solum), moderated by none other than Jonathan Zittrain. The event is free and open to the public, and details are here. I understand that a recording will be available after the program concludes.

But that’s not all! For a double dose of Bay-area legal blogging tomorrow, attend the second Bay Area Blawgers meetup, organized by Eric Goldman. Details are here; RSVPs are required.

Disclaimer Haiku:
West wind seems to say,
"This is not legal advice;
I'm not your lawyer."

(And if you're a client with whom I have a preexisting attorney-client relationship, this still isn't legal advice.)

In case you're wondering, this blog is also not intended as advertising, as a representation of anything but my personal opinion, or as an offer of representation.

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