Guitar Hero Maker Sued - Cover Song Too Awesome

volpone writes "The band "The Romantics" are suing Activision over their wedding reception favorite, 'What I Like About You,' which appears in Guitar Hero Encore: Rocks the '80s. The problem is not copyright infringement; Activision had permission to make a cover version of the song. No, the problem is that the cover sounds too much like the original. 'The band's attorneys have indicated that they are seeking an injunction that would force the game to be withdrawn from sale. Although around half of the songs in the newly released Guitar Hero III: Legends of Rock feature recordings by the original artists, in previous Guitar Hero games the majority of songs were cover versions.'" In not totally-unrelated news you can download the Mjolnir mix of the Halo theme for play on GHIII, free, today.

Comments

Covers vs. derivative works

[WhiskeyJuvenile]

A cover -has- to sound like the original in order to qualify under the compulsory licensing scheme in America. If the cover reworks the original, it's not a cover but a derivative work, and is infringing.

Re:Too simple a song perhaps?

[Jay L]

Presumably, "have permission" means "paid for permission", which, in turn, most likely means "pays royalties on every copy sold", which translates directly to "the label is being paid", which we all know really means "the artist isn't seeing a penny from the label", which means...

Not necessarily. I studied this for an entire semester, but I've apparently blocked it all out.

There are a bunch of different kinds of music "rights" - around six or seven basic ones, IIRC.

The important distinction here is between the rights to the song - the melody, chord changes, lyrics - and the rights to the recording. We don't care about the recording here, because we're making a new one.

The song isn't owned by the record company (again IIRC). Whether it's owned by the publisher, or the composer, or various artist's collectives, I couldn't tell you anymore. And, of course, sometimes the publisher is the label; a lot of times, the publisher is the songwriter (who may or may not be the artist).

Some of these rights are compulsory - that is, in lieu of actually negotiating individual agreements, the licensing fees are just declared by law or regulation, and you've implicitly agreed to them by copyrighting something. Some are in theory not compulsory, but are in practice always negotiated by the same group at the same rates (e.g. the Harry Fox Agency). Some are covered by international conventions, some aren't. And so on.

So without seeing the actual contract The Romantics signed, it'd be hard to say if they got money out of Activision's existing license. (Even seeing the contract might not clear it up; naturally, everyone involved is trying to get more than their share, and sometimes that means writing contracts that confuse artists, if you catch my drift.)

And, of course, when the song was written originally, the concept of "videogame rights" was nonexistent, so who knows what part of their contract would cover it now...

Decide for yourself

[garett_spencley]

I found these clips on Youtube:

The Original
Guitar Hero Version

Re:3-chord covers

[xigxag]

1) Why the assumption that Activision is the big bad in this case? They may have done a perfectly ordinary cover, and the judge may completely dismiss the Romantics' case. Or not, but it's fairly common for cover artists to try to emulate the original sound.

2) I think it's at least possible the people are objecting to this case not out of a love for Activision, but out of the principle that intellectual property rights should be as least restrictive as possible. That is of high concern to many of us "slashdotters," one which might override concerns about which party is David and which is Goliath.

3) In Midler, there are several facts to the case which may be different from The Romantics.

First, we know for a fact that Ford attempted to negotiate with Midler for her performance and she refused. We don't know that in the case of the Romantics.

Second, Young & Rubicam, the ad agency, admitted at trial that they instructed Midler's backup singer to sound as much as her as possible. There's no evidence of those kinds of machinations here, yet. And even if there were, the law makes clear that "mere imitation of a recorded performance would not constitute a copyright infringement even where one performer deliberately sets out to simulate another's performance as exactly as possible." There has to be more than that -- see below.

Third, at the outset of negotiations, Midler's lawyer asked, "Is it a commercial?" was told yes, and responded, "We are not interested." Clearly Midler did not want her vocals to be considered an endorsement of an advertised product. Perhaps she was opposed to Ford's labor practices or simply preferred BMWs. The point is that a listener might reasonably infer that Midler was endorsing the prodcut through her vocals, and might form an untrue opinion of her character. The Romantics' (apparent) performance in GH does not imply any endorsement of a specific commercial product, and therefore it's possible a court will decide that it is not a misappropriation of their identity, regardless of the degree of verisimilitude.

The text is available online. People can reach their own conclusions.