The 80s pop band The Romantics are suing the producers of the fabulously successful video game Guitar Hero. (Billboard story here.) The game includes a lawfully produced cover of The Romantics’ one and only smash hit, What I Like About You. The band apparently complains that the cover (by a company called Wavegroup Sound, apparently now riding a wave of fan interest as a result) is so good that consumers are likely to think that the band itself recorded it.
This argument is a cousin of the trademark claim that the Supreme Court killed off in Dastar v. Twentieth Century Fox. The band apparently reframes its argument in the language of publicity rights (Guitar Hero has mis-appropriated the “likeness” of the band via reproducing its distinctive sound), and therefore tries to thread the needle arguably left intact, post-Dastar, in cases like Wendt v. Host International. Like the claim in Dastar, it deserves to die the special death reserved for mutant copyright. Continue reading