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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.

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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