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 'The band's attorneys have indicated that they are seeking an injunction that would force the game to be withdrawn from sale.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

Too simple a song perhaps?

[mgkimsal2]

It's a pretty darn easy song (many popular songs are) so I'm not surprised to find that it's very 'close to the original'. If they had proper permission to include a 'cover' of it, what did they expect? I love the song, and am a sucker for bubblegum/powerpop type stuff, so perhaps that's why I can't see the problem with the cover here. Won't it potentially drive some more sales for their other stuff from people who learn about them through the game? Or perhaps it's because it's so close people won't bother going to buy the original or other Romantics tunes?

Re:Too simple a song perhaps?

[Osty]

Won't it potentially drive some more sales for their other stuff from people who learn about them through the game? Or perhaps it's because it's so close people won't bother going to buy the original or other Romantics tunes?

Guitar Hero III is actually driving online sales of songs in the game, though the effect is not so clear on physical album sales. I would expect that even cover songs drive sales, with better covers driving even more sales. Assuming the Romantics have songs available on various online music sites (iTunes, Zune, Rhapsody, etc), and assuming that they still see some royalties from the sale of their songs, this seems like a very stupid move.

Then again, we are talking about GH: Rock the 80s, a lack-luster stand-alone GH game that's only available on the PS2 and has been on the market for a while. It may not longer be driving online sales, so this is a final effort to squeeze a little bit more money out of the license.

Re:Too simple a song perhaps?

[Firethorn]

It doesn't have to be 'paid for every copy sold'. Activision and "The Romantics" agreed on a contract. For a sum of money based on a pre-agreed formula, the company was allowed to do a cover song for the game. This sort of stuff is pretty standard, maybe not for a game, but for things like movies, karaoke, remixes, etc...

If I was judge over this case, one of the first things I'd ask if there was some stipulation in the contract as to the quality of the song. If it's not in the contract and they waited until it came out, didn't insist on having editorial control in the contract, too bad.

Normally, I'd support the band against the big company, but in this case it simply sounds like the band is trying to shake the company down for more money. You see, if they asked for too much money in the beginning, Activision would have simply not included that song and gone for a different one.

However, they know that once the game has been produced, the discs pressed and shipped to stores, that it's too late to pull the song without massive expense. So they come up with some bullshit excuse like 'the cover song is too good so it violates our copyright/trademark' I mean 'rights to it's own likeness' is NOT a protected right. They're probably hoping for a out of court settlement.

Personally, if this is the case I hope they get squashed and end up burning what they were paid to have their song in the game to pay their and Activision's lawyers. Of course all this is a reaction based on the story. I reserve the right to change my views if further information turns up that changes the situation.

This is little different than the old scam of finding some reason to sue a company(mental suffering was popular), then carefully asking for a settlement that would be less than what court costs to successfully fight it would be. Many businesses folded, paying to satisfy the accountants until it was pointed out that it was cheaper to fight 1 of these cases than to pay a hundred, which was the case. It's an old principle - you pay the Danegeld, you never got rid of the Dane.

Re:Too simple a song perhaps?

[shark72]

"Who cares. 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..."

Huh? We're talking about publishing rights here. Publishing rights typically don't go through the label. If you record a cover version, you're dealing with an entirely different set of people; often the composer and lyricist themselves Record companies, on the other hand, deal with distribution of recordings. This is exactly why TFS started out by mentioning that The Romantics are suing Activision, and not the record company.

Misinformation like yours is dangerous because we're supposed to be supporting the artists. Publishing rights for cover versions and the like are a great way for bands to make money without having to share any of it with the record label. This is a GOOD thing. You are trying to trivialize this very important right by spreading the falsehood that this is in the domain of the record label.

Re:Too simple a song perhaps?

[DM9290]

"Activision and "The Romantics" agreed on a contract. For a sum of money based on a pre-agreed formula, the company was allowed to do a cover song for the game. "

A cover is not the same thing as deliberately contriving to fool the audience into thinking they are hearing the original band performing the song. If your cover sounds so much like the original band that a reasonable person would be confused and think that it is the original, then you are copying their likeness. This would be exasperated if you used cartoon avators in the videogame that actually LOOK LIKE the Romantics.

You can't dress up and mimic John Lennon, act like him, sound like him and dance like him and sell music, even if they are your own original songs. If you are trying to impersonate his likeness, and people hearing you would assume it was him, and might accidentally pay you money, thinking they are getting John Lennon songs, then you are using his likeness and could be sued by his estate. This doesn't change if you get a license to do a cover.

I am sure the court will be quit lenient and liberal in interpreting what is allowed in a cover. But as far as infringing a likeness... I am not sure there will be much leniency. Likeness rights are like trademarks. If there is evidence that Activision was attempting to exploit the likeness of the romantics then they possibly went too far in law.

Re:WTF did they expect?

[Ipkat]

Actually, the copyright to the song (i.e., the score) and the copyright to their recording of it are two separate things. It's likely they just didn't own the copyright in the score, and whoever did happily licensed it away to Activision. This reminds me of the strange case of Tom Waits v. Frito Lay, in which old Tom was awarded $6 million for "misappropriation of personality" after Frito Lay hired a Waits impersonator to sing in a commercial. You Americans and your crazy IP laws!

No way should it be pulled

[edwardpickman]

The point is the game company should have a reasonable expectation that what they were doing was legitimate. Withdrawing the product is an unreasonable action and grossly harms the game company when there is a serious question that they did anything wrong in the first place. Lots of covers of songs sound just like dumbed down versions of the original. The only way they might have a case is if there was a reasonable expectation of confusion and the game company was selling the cover version as a single or part of an album. There's no damages in this case since the record company owns the song and licensed it for use. Go to Las Vegas, there's a bunch of lookalikes doing covers every night of songs and they even dress like the stars to "Create" confusion with the original artist. If they advertised the game as including the Romantics song that could also be grounds since they are using the band's name to help sell games but I take it that isn't the problem. Basically the band got screwed out of money because the record company owns their songs not them. That's the issue not a game company ripping them off.

Romantics History

[bmo]

"presumabley they're trying the "sue for the world, settle out of court for what they really want" tactic."

It's not that. It's "We never got a dime for this shit when it was popular, but now that we have our own stuff back, we'd like to have our contracts followed, thanks"

They got screwed over by Joel Zuckerman and Arnie Tencer and never saw a dime for "What I like about you" when it was popular. All those Molson and Budweiser commercials? Nothing. Zero, zilch. They had to tour for _7 years_ to finance the lawsuit to recoup _something_, and they eventually won judgments but were unable to collect because Zuckerman and Tencer didn't have any visible assets.

The only important thing they got back was control of the original copyrights, many years after being popular.

Given the history of The Romantics, I'm not surprised they're trying to stick up for themselves.

A history lesson:

http://www.metrotimes.com/editorial/story.asp?id=5363

--
BMO

Re:Decide for yourself

[Firethorn]

Having listened to both versions, besides seeming to have different mixing ratios (guitar was realllly emphasized in hero), I find myself having to ask: What do they need for it to not count as 'too close'? I mean - I'll admit that the main singer in hero was close, but I can tell the differences in side by side.

Having watched some of those karaoke and band shows on the tube* today, I know that there are people who can get scarily close when they imitate some popular bands.

I have no problems believing that a good cover band, selected somewhat selectively to imitate a popular song, being fully capable of 'scary imitation'. IE what else were they expecting? Their number turned into a rap song? For the cover band to suck, for a major production?

A cover band was probably needed as suitably separated/isolated recordings didn't exist for the song, and the band is no longer capable of playing it to their old level. We are talking about an '80s band here, and not one that's kept up either.

*Weird thought: How long until people won't know what that means?

Re:3-chord covers

[MarkAyen]

Aren't situations like this the reason we use contracts? Without seeing the provisions of the actual contract, speculation as to who's in the right is pointless.

TFA certainly doesn't have enough information to reach anything like a reasoned conclusion. Either party could be in the right. That said, it seems to me that the contract language would have to be pretty specific for the Romantics to have any kind of legal basis for their complaint.

But that's why Guitar Hero sucks to begin with

[Khyber]

The moment I heard the horrible covers of songs like Symphony of Destruction and Laid to Rest, I went and returned the game.

Seriously, listening to a song that awesome that has become that badly mangled (not to mention I have those songs memorized and can play them on a real guitar) by a cover band immediately turned me off to the game. Why couldn't the game studios just ask for access to the original multitrack parts? Seriously, any studio worth it's salt should have separate tracks for a mixdown, from vocals to drums to guitars. Would it have been that hard to get the music as it was originally written, instead of a mangled cover-band version?

Re:Yay bands

[jonadab]

I admit, I'm not very familiar with Pachelbel's work. I'm familiar with Canon in D, of course, which is so ubiquitous it's well neigh impossible to miss, but I try not to judge a composer by his single most famous work, for two reasons.

First, even a great composer can write something that's more popular than it deserves to be and not representative of the rest of his work (e.g., BWV 565, which must be Bach's eighth or tenth most famous work but is FAR from being his eighth or tenth best). Anybody can write drivel occasionally, and hoi polloi can unaccountably latch onto it and just about forget they ever wrote anything else. Romeo and Juliet is perhaps the best example: not only is it easily the weakest of Shakespeare's tragic plays, it's also about five times as popular as the rest of them put together.

Second, it can also go the other way: sometimes an artist really has *one* really good work in him, and once he's written that, the rest of his career consists either of resting on his laurels or else turning out lower-quality works because it's all he can do. Cervantes, having written Don Quixote, was not destined subsequently to write anything else as noteworthy, not for lack of trying.

So without hearing some of his other work, I don't really know what I think of Pachelbel.