What I Don't Like About You: One-hit Wonders Sue Over Guitar Hero Sequel
What I Don't Like About You: One-hit Wonders Sue Over Guitar Hero Sequel
November 25, 2007
Hey, uh huh huh
Hey, uh huh huh
What I like about you, you hold me tight
Tell me I'm the only one, wanna come over tonight, yeah
Detroit classic rock band The Romantics has filed suit against Activision over the inclusion of its popular - and only - hit, What I Like About You in Guitar Hero Encore: Rocks the 80's. The game was released in July for the PlayStation 2.
As reported by the Detroit Free Press, GH publisher Activision properly licensed the song from the group for inclusion. However The Romantics contend that the cover band employed by Activision to play the song on GH 80's sounds too much like the original version.
You're whispering in my ear
Tell me all the things that I wanna to hear, 'cause that's true
That's what I like about you
What I like about you, you really know how to dance
When you go up, down, jump around, think about true romance, yeah
There may be legal precedent for the lawsuit. From the newspaper story:
Artists such as Tom Waits and Bette Midler have won legal victories on similar grounds for sound-alike recordings used in TV commercials. In those cases, the imitation recordings were ruled to have infringed the artists’ rights to publicity by leading consumers to associate the artist with the advertised product.
Attorney William Horton, representing The Romantics, said:
It’s a very good imitation, and that’s our objection. Even the guys in the band said, ‘Wow, that’s not us, but it sure sounds like us.’
Horton agues that Activision should have been willing to pay royalties for a master license for the original 1980 recording.
You're whispering in my ear
Tell me all the things that I wanna to hear, 'cause that's true
That's what I like about you
That's what I like about you
That's what I like about you
Wahh!
Hey!
What I like about you, you keep me warm at night
Never wanna' let you go, know you make me feel alright, yeah
However, University of Michigan law prof Jessica Litman, a copyright specialist, told the Free Press there were key differences between the Romantics’ claim and those of Waits and Midler:
Putting something in a game is quite different from putting it in a commercial. Here it’s being used as an intrinsic sound in the gameplay. That seems to me to be a loser on state law grounds and trademark grounds, because no one is going to be confused and think that they’re endorsing Playstation or ‘Guitar Hero.’
In a so-so review, GameSpot described the sequel as "Guitar Hero II with a coat of neon paint and half as much content."
UPDATE: GP reader Bill Ford forwarded the complaint in the case.
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Comments
"What? It isn't even that hard to tell the diference between the original and the cover!"
I mean come on, the cover band did good but not THAT good.
Also, to quote Wikipedia...
"GameSetWatch compared the game to Lou Reed's Metal Machine Music, saying that the game is "totally Harmonix's contractual obligation game" due to the bare minimum of changes made from Guitar Hero II."
MMC: http://en.wikipedia.org/wiki/Metal_Machine_Music
Doesn't change the fact that it's probably the most annoying song in GH 80s on Expert. Someone really got carried away with the triple chords. Hurts my paw.
Anyways, onto the lawsuit.
The Romantics haven't been a household name SINCE the 80s.
So one of 'em noticed that What I Like About You was on Encore and sirens went off.
The smell of money was in the air.
These guys have to be near-broke... I mean, damn. Why else would they sue. It's all about the money.
It's ALWAYS all about the money.
"One of the things I noticed was that the gamers were immediately and blindly supporting the game developers over the musicians despite the fact that both parties are only out to make a buck."
This tendency isn't confined to gamers (where people just assume the law matches their policy preferences), but I think the intuition to side with the defendants is probably the right one in this case. I agree with Professor Litman that confusion is unlikely here, which means the false endorsement claim should fail.
The right of publicity issue is tougher. It doesn't necessarily turn on whether people are likely to be confused about the Romantics' relationship to Guitar Hero. Put another way, the Romantics don't necessarily need to show a likelihood of consumer confusion to win on this claim. It depends on how the right of publicity is protected under the law of the relevant state or states. The First Amendment is also implicated here. If the right of publicity is applied too broadly, it threatens free expression.
Incidentally, just last month the United States Court of Appeals for the Eighth Circuit decided a very important case involving the intersection of the right of publicity and the First Amendment in a gaming context (i.e., fantasy baseball). It’s a huge case.
The Eighth Circuit’s opinion is here:
http://www.ca8.uscourts.gov/tmp/063357.html
(click on "opinion" to open the pdf file)
“Guitar Hero II with a coat of neon paint and half as much content.”
And cheaper, so what's your point, Gamestop?
My wife just unwrapped that game last night, and blew through all the songs on medium. She was kinda disappointed, but then I told her it was cheaper than GHII and she said, "Oh, like and expansion pack."
Honestly, though, it would have been nice to have original cuts on the game, and less OBVIOUS re-makes. The Romantics are up shit creek.
I don't know much about the subject, but... WTF?
"I wouldn’t say “What I like About You” was The Romatics’ only hit. I remember “Talking in Your Sleep” being in heavy rotation in the early ’80s, so that did well for them."
Thunder-stealer.
There is also a residual sales element to people wanting to buy their favorite songs over iTunes and CDs. I'd say the misunderstood endorsement would be Activision endorsing the Romantics.
Quite a shame. I happen to like the song.
Guitar Hero Encore sucked. It was the game that basically said "we're going to milk the franchise". Sure it had some good songs, but there were others that really DID NOT belong. And then there was the lack of songs to play. GH2 had a lot of songs, then they cut that down and don't even add extra content. LAME.
Originally, I heard the rumor that GH3 was under lawsuit. A friend had heard that they were suing because the songs weren't legally allowed to be in the game. I was worried about that since I wanted to get GH3 for the 360 (have it for the PS2 but want online play). So thanks GP for clearing that up!
I have a feeling this lawsuit isn't going to go through because of the contract they signed.
Oh yeah, and the song is clearly not being sung by The Romantics. I could tell almost immediately. Sounds like a case of greed to me.
This licensing was probably the largest chunk of change that has floated their way in a while, and they're going to bite the hand that feeds. I wonder if Rock Band was going to release a downloadable of this song...now, I have no doubt that they will not.
And Haruhi Suzumiya's 'God Knows...' (look it up on youtube) being the best. rock. song. ever. should be one of GH III's and Rock Band's downloadable song. Okay, I'm done raving, oy. Rock on!
Now what I'm REALLY surprised about is that Burning Man hasn't sued Activision/Neversoft for the multiplayer arena in GH3 - they're typically very, VERY protective of the likeness of The Man ESPECIALLY in commercial ventures and I know that Activision did not seek out their permission before including that stage.
What a bunch of f*cking idiots.
If you're a fan of a song, video game, movie, whatever, NEVER try to make a tribute to it ot show your being afan, the artist will just sue if you do too good a job.
Seriously, these idiots need to mellow out. They should be honored, not trying to fatten their wallets. The term "one hit wonder" makes me wonder about this
If this ever makes it to court, it'll be:
Exhibit A: Original song by original artist
Exhibit B: Cover song by Harmonix house bands (as made famous by)
Case closed, judgement in favor of defendant.
Oh wait.
If Activision was able to pay a higher licensing fee for an original recording or a cover that sounded very close to the original recording and chose not to but then later produced a cover that sounded very close to the original recording then I don't see any problem with The Romantics suing them.
All the lawsuit means is that an independent party will determine if the song was too close to the original recording to meet the terms of the licensing agreement that Activision entered into.
Everybody's pissed at the Romantics, but if Activision gave two shits about the game then they would have made sure that they were within their rights when they recorded the song. They're a company and their job is to make money, not games. They just use games as a means to make money.
Anyways, this is kinda stupid...suing because it sounds too much like the original..
The statement that copyright owners pursuing infringement claims must prove they have been actively defending their copyrights is largely incorrect, though there is a small nugget of correctness related to the doctrine of abandonment. See, e.g., Capitol Records v. Naxos, 372 F.3d 471, 484 (2d Cir. 2004) ("Second, failure to pursue third-party infringers has regularly been rejected as a defense to copyright infringement or as an indication of abandonment.").
At the moment, however, copyright law is pretty much irrelevant to this case. The Romantics' complaint includes four counts: (1) right of publicity violation; (2) false endorsement under the Lanham Act (the federal trademark act); (3) unfair competition; and (4) unjust enrichment. There is no claim for copyright infringement in the complaint.
Tank? I don't remember that having Guitars, oy. But it counts for Rock Band.
I could have lived with the game anyway for $30.. but I payed $60 for it.
I can't beleive any Romantics fans could get confused about the version though - not because it's markedly different, but I can't beleive that there are any Romantics fans. I mean, isn't that kind of like being a big Falco fan?
Well, considering the website your name links to and the fact that you teach video game law, I'll concede that I was way off the mark there :)
One of the things I noticed was that the gamers were immediately and blindly supporting the game developers over the musicians despite the fact that both parties are only out to make a buck.
Did Activision screw over the Romantics to save some cash? Possibly. Are the Romantics just trying to milk Activision for some more green? Possibly. Are they both more concerned with money then the video game this all centers around? Definitely.
When somebody owes you money and screws you over it's a bitter pill to swallow, especially when that somebody is raking in cash hand over foot.
"If Activision licensed the rights to a cover version that was distinct from the original and used a cover version that was too close to the original for the band’s comfort then they have to sue. A very important part of copyright law is being able to prove that you have actively defended your copyright."
Trouble is, that assumes that the license deal specifically included language related to the maximum allowed closeness of the cover version to the original. And how does one define this in terms that will make sense in a courtroom anyway?
A license for the rights to a song can not include language alluding to the master recordings, as those are protected under another agreement entirely. But the suit still serves a function: when's the last time you thought about The Romantics before this?
(I am curious what a "dramatic" musical composition is, however)
It certainly doesn't matter how close you sound to the original. If it were otherwise, the unemployment lines in Vegas would be filled around the block with Elvises (Elvii?)
http://www.ca8.uscourts.gov/opndir/07/10/063357P.pdf