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 'The band's attorneys have indicated that they are seeking an injunction that would force the game to be withdrawn from sale.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

Of course they did...

[hsdpa]

By taking the Fourier-transform of the song, and then the Inverse Fourier-Transform, you're making a cover. A remix by most - but not a plagiate.

Re:Of course they did...

[cacepi]

By taking the Fourier-transform of the song, and then the Inverse Fourier-Transform, you're making a cover. A remix by most - but not a plagiate. Dude, this is Guitar Hero; speak English for Christ's sake!

Re:Of course they did...

[Anonymous Coward]

"Dude, this is Guitar Hero; speak English for Christ's sake!"

"Slashdot, New for nerds and stuff that matters".

Okay, so you failed at math and you are visiting the wrong site. Double-whammy.

Wow, just wow.

[base3]

A washed-up 80's band with two hits to its name sues because a cover band was able to duplicate their syrupy bubble-gum pop sound. The mind boggles.

Re:Wow, just wow.

[weighn]

A washed-up 80's band with two hits to its name... For those playing at home, the other "hit" was Talking In Your Sleep in 1983. I'd hum a bar for you, but it can't have been too memorable.

Re:Wow, just wow.

[Wildcat J]

I heard a funny story about them, which may or may not be true:

The Romantics played here in Tucson a few years back for a local festival-type show (either "Nightmare on Congress" or "Fall Crawl"--mostly local bands, including one I played in at the time), and a fairly well-known local band let them rehearse in their practice space. Someone walking through the hallway heard them and commented that it sounded like a really crappy Romantics cover band. If only they knew!

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?

[BronsCon]

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...

Oh. Right. In that case...

Re:Too simple a song perhaps?

[The Evil Couch]

It's a pretty darn easy song

Indeed. For those of you more familiar with Guitar Hero than sheet music or guitar tabs, this song basically goes like this: green, pause, green, pause, green, red, red, pause, red, yellow, repeat. Except it's really that easy IN REAL LIFE.

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...

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.

WTF did they expect?

[TibbonZero]

Have they been living under a rock? Everyone knows what Guitar Hero is! I've never heard of someone doing a cover song, "Too close" without sampling being sued like this.
If Activision or Harmonix came to me and was like, "Hey, we are going to do a cover of your song for GH/RB" I'd have a pretty damn good idea of what they are doing. It's not going to be a Salsa cover of a rock song, but a pretty damn close cover with at best some parts adapted to fit the game better!

Really, i mean what did they expect?
morons.

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!

If true, poor move by the band

[eebra82]

The band's attorneys have indicated that they are seeking an injunction that would force the game to be withdrawn from sale. If true, what on earth could have triggered them to ask their lawyers for such a ridiculous action? Clearly, no one is a winner if "the Romantics" win over Activision in court:

- Activision will lose a lot of cash on all the disks that must be reprinted.
- Fans of the title will be furious if they have to wait for weeks.
- The band will be perceived as greedy and ignorant to their own fans who wait for this title with great anticipation.

If anything, they should ask Activision for money. Maybe I am ignorant or just unaware of some fundamentals here, but at least if I was an artist, I would have allowed this. Maybe I'd had been bothered but I would certainly try not to make an ass out of myself in front of my fans.

Re:If true, poor move by the band

[compro01]

If true, what on earth could have triggered them to ask their lawyers for such a ridiculous action? Clearly, no one is a winner if "the Romantics" win over Activision in court:

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

either that or they're certifiably nuts, which is always a distinct possibility.

Songs by "The Original Artists"

[Derling Whirvish]

BTW, when I was a kid and compilations of hits by cover groups was common (sorta like "Kidz Bop" now is) rarely would compilations of the original songs be offered on TV due to the high costs of getting the licenses. But I remember one TV offer in particular that was a group of recent hits and the name of the cover group was "The Original Artists." The come-on was something like: "20 of 19xx's greatest hits all by 'The Original Artists." I still LOL over the marketing slimeball that came up with that one.

Slashdotters unite!

[starglider29a]

Let's all boycott buying Romantics albums!!!

That'll show 'em!

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.

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

If only Activision had used...

[DreadfulGrape]

more cowbell!

3-chord covers

[weighn]

"What I Like About You" is pretty much an early Kinks pastiche.

Ditto Gloria and a million songs that go E-A-D.

According to TFA, the attorneys say that publishing an accurate cover is "infringing on the group's rights to its own likeness".

FFS, we are talking about a 3-chord riff that a child could master in 10 minutes.

can someone explain to them the purpose of a cover song? I hardly think that the makers of GH would want re-interpretations of original songs on their product.

Re:3-chord covers

[shark72]

"can someone explain to them the purpose of a cover song? I hardly think that the makers of GH would want re-interpretations of original songs on their product."

Sorry -- there's precedent here. If you deliberately do a cover that sounds too much like the original as to cause confusion, you're likely to be sued. Maybe this is one of those cases where the rest of the world really needs a good explainin' from the Slashdot populace, but nonetheless, this is how the rest of the world works for the time being.

For those of you with Westlaw, look up Midler v. Ford Motor Company. Ford hired one of Bette Midler's background singers to do an exact copy of Midler's vocal style on a cover of one of her songs ("Do You Want To Dance") for an ad for the Mercury Sable. They did this because it was cheaper than hiring Midler, so they set out to attempt to confuse the audience. It worked -- I knew people who swore that it was the Bette Midler version. Midler sued; Ford lost.

What the makers of GH want has absolutely no bearing here. What matters is what they are legally entitled to get. If you don't want to pay up to use the original recording, you don't get to record a soundalike. To avoid being sued, you do a re-interpretation, no matter how much you want something that sounds just like the original article, without having to pay for it.

This is little band vs. big corporation here. I can't believe that some people think it should be simple as "explaining" to the band that they have no case because the big company wanted an exact copy of their song, but didn't want to pay for the privelege. Big companies should not have the ability to trample the little guy's rights simply because they "want" something. Sure, it happens enough... but why are Slashdotters suddenly supporting this notion?

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.

Re:Last time I checked...

[Scamwise]

This common phrase has been changed to "Imitation is the highest form of infringement" or at least it was until it was sued by the owners of the original flattery statement due to copyright infringement.

It went Wii, Wii, Wii

[Eccles]

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

I've been trying to buy the Wii version for the kids; as far as I can tell, they've succeeded.

Decide for yourself

[garett_spencley]

I found these clips on Youtube:

The Original
Guitar Hero Version