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Romantics Sue Over Guitar Hero

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.

The producers of Guitar Hero procured a license to record the cover by following the requirements of Section 115 of the Copyright Act:

A compulsory license includes the privilege of making a musical arrangement of the work to the extent necessary to conform it to the style or manner of interpretation of the performance involved, but the arrangement shall not change the basic melody or fundamental character of the work, and shall not be subject to protection as a derivative work under this title, except with the express consent of the copyright owner.

Harry Fox, which offers mechanical licenses on terms comparable to those specified by the Copyright Act, follows the same principle.  No cover license is available if the “fundamental character of the work,” i.e., the musical composition, is changed by the cover artist.  Change the song too much, in other words, and you have to negotiate with the original songwriter directly.  Now The Romantics come along and argue that the cover artist changed the song too little?  The Romantics imagine that they sound as distinctive as Bette Midler and Tom Waits, each of whom won publicity rights claims against “soundalike” recordings.  This is a “damned if you do, damned if you don’t” box that The Romantics are trying to create.  That may be justification enough to distinguish this case from Midler and Waits.  At least I hope that it is.

Update (11/23): Joe Gratz has more, including a copy of the Complaint.