'Guitar Hero' Maker Defends Sound-Alike Version of 'What I Like About You'

Posted by Matthew Heller

A publicity rights suit filed by '80s rockers The Romantics over the use of one of its songs in a “Guitar Hero” video game would “turn[ ] copyright law and its attendant protections upside down,” the game's maker argues in this motion for summary judgment.

As we previously reported here, the Romantics allege the cover version of "What I Like About You" on "Guitar Hero Encore, Rocks the 80s" is so slavishly faithful to the original that it amounts to "intentional misappropriation of Plaintiffs' identity and persona and imitation of their distinctive sound." But Activision Publishing, which acquired a synchronization license to use the song, says the group's claims  are preempted by the federal Copyright Act.

"Turning copyright law and its attendant protections upside down, Plaintiffs' approach would open the litigation floodgates to allow anyone with any 'identifiable trait' captured in another party's copyrighted work to dictate what can be done with that work -- irrespective of any copyright permissions that may have been exchanged between owner and licensee," Activision attorney Herschel Fink of Quinn Emanuel's Detroit office (Update: Nope, Quinn hasn't opened a Detroit office, Fink is a partner at Detroit-based Honigman Miller Schwartz & Cohnsays, which is assisting Quinn with the case) in the summary judgment motion.

The Romantics have cited well-known cases involving singers Tom Waits and Bette Midler in which the 9th Circuit ruled that sound-alike recordings "cannot be used for commercial gain." But Fink says no cases "extend the right of publicity to cover a group of people's (or band's) sound" and "Guitar Hero" does not use "What I Like About You" to advertise a product.

A summary dismissal would not be a surprise since U.S. District Judge Nancy G. Edmunds previously endorsed similar defense arguments in denying The Romantics' motion for a preliminary injunction. "As Defendants possess a valid synchronization license, they have the right to make their own recording of the Song to integrate into the Game without violating Plaintiffs' right of publicity," she said in her previous ruling.

UPDATED: No, Honigman Miller Schwartz and Cohn