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DECEMBER 12, 2007
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"Romantics" are
saying what they
don't like about you!
Rock band's lawsuit
takes aim at video game
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By Susan Butler
NEW YORK (Billboard) - Cover bands and tribute bands have been a mainstay
of the music scene for decades. When a company licenses a composition, it
may find that licensing the original master recording is outside the budget or
unavailable for licensing. Hiring the original band members to rerecord the
song may not be an alternative because of contractual rerecording restrictions
in the band's record deal, the members no longer sound like they once did or
they may be dead.
So when someone wants to record a cover version of a song, when does it
violate the original artist's rights?
Michael Novak, the Detroit-based personal lawyer for the Romantics, says he
believes a violation occurs when consumers think they're listening to the
original band.
That's the basis of a recent lawsuit by three original members of the Romantics
against Activision Publishing and others. And though music publishers have
been looking at the solidly growing videogame industry as a strong source of
potential license revenue, the Romantics' lawsuit may throw a crimp in the plan.
On November 20, Wally Palmar, Mike Skill, Coz Canler and the Romantics,
a.k.a. Master Beat, sued the developers and publishers of "Guitar Hero Encore:
Rocks the 80s." They claim that the game's sound-alike recording of "What I
Like About You" improperly imitates the band's sound that the members have
developed since 1979. The recording makes it "virtually indistinguishable from
the authentic version" and confuses consumers into believing that the band
actually recorded the music and endorsed the product, the suit claims.
"Guitar Hero" is a series of videogames that play songs through audio
speakers while the video monitor on a Sony PlayStation 2, which connects to a
simulated guitar, shows color-coded musical notes and animated characters
playing guitars. The object of the game is to play the notes in the same order
and at the same time as those on the monitor, receiving points for accuracy.
The composition was licensed from copyright holder EMI Music Publishing, but
the game developers and publishers did not license the original master
recording. Instead, WaveGroup Sound recorded a cover version of the song to
sound like the Romantics, the suit claims.
Filed in the federal District Court in Detroit, the suit alleges claims for violation
of the right of publicity, false endorsement and unfair competition. It names as
defendants Activision, Harmonix Music Systems, RedOctane and WaveGroup
Sound.
About half of the states in this country protect a person's right of publicity -- i.e.,
the right to prevent others from using his or her identity for commercial
purposes without permission. If a state doesn't specifically recognize a right of
publicity, it likely protects an individual's right of privacy, which often includes
protection of an individual's identity.
But there are limitations in this protection. Only about a dozen states permit
heirs of a deceased person to prevent commercial use of the deceased's
identity, and then only under certain circumstances. The right is also an
individual's right, not a right that a corporation or business entity may claim. And
the right of publicity typically only protects a famous, distinctive voice.
In the 1980s, Bette Midler won a lawsuit based on her right of publicity against
Ford Motor. The automaker's ad agency hired a sound-alike singer to perform
Midler's "Do You Want to Dance" (licensed from the publisher) for the
commercial when Midler turned down the offer. Then in the '90s, Tom Waits
won a suit against Frito-Lay after the company used a singer to impersonate
Waits' voice to sing for a chips commercial.
But Nancy Sinatra lost an unfair competition claim in the 1970s against
Goodyear Tire and Rubber. A commercial featured "These Boots Are Made for
Walkin'," one of Sinatra's biggest hits. The singers allegedly imitated Sinatra's
voice, style and way of dressing. The Ninth Circuit Court of Appeal wrote that the
defendants "had paid a very substantial sum to the copyright proprietor to
obtain the license for the use of the song and all of its arrangements." To give
Sinatra damages for their use of the song would clash with federal copyright
law, the court wrote.
In the Romantics' suit, the plaintiffs will likely have to establish that their sound
is truly distinctive and argue that a band's sound is protected like that of an
individual's sound.
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