Guitar Has-Beens v. Guitar Hero

LTB logo

On November 20, attorneys for the band The Romantics filed a complaint in federal court against Activision, the publisher of the game "Guitar Hero," claiming that the game infringes on the group’s rights to its own likeness.

In the interest of full disclosure, I should mention at the outset that (1) I have a copy of "Guitar Hero III" sitting right here, and it’s awesome; and (2) I have long hated The Romantics.

"Guitar Hero," a console game in which players use a guitar-shaped controller to simulate playing rock-and-roll songs, and which rocks, has been described as a "cultural phenomenon" by Newsweek magazine and is now up to its fourth installment.  This lawsuit concerns the third game (considered a sequel to the second), "Guitar Hero Encore: Rocks the 80s."  While the latest game (GH III) features the original versions of most or all songs, increasing its awesomeness quotient still further, earlier versions tended to use cover versions.

The Romantics allegedly were, and allegedly still are, a "rock band" from Detroit that was formed in 1977.  Their song "What I Like About You" somehow reached #48 on the Billboard chart in 1980 despite being hugely irritating. They had more success with the song "Talking In Your Sleep," which made it to #3.  According to this disturbingly detailed Wikipedia article on the band, which shows some signs of having been written by a Romantics representative, the band did not record from the late 1980s to the mid-90s for legal reasons (and not because, for example, the public had ceased to buy its recordings), but then started again.  Supposedly, a 2003 album failed commercially but "won the Romantics a newfound critical respect."  (You’ve probably heard all about that.)

That may also end up describing the band’s lawsuit, at least if the pleadings are really well-written.  The band concedes that the game developers had the rights to use a cover version of the song in the game, but apparently they claim that the cover is too good.  Being "virtually indistinguishable from the authentic version," the complaint alleges, it would confuse "consumers into believing that the band actually recorded the music and endorsed the product."  This allegedly infringes on the group’s rights to its own likeness.

More to come on this, certainly.  Those who would like to join me in a class-action suit seeking emotional-distress damages for having to listen to "What I Like About You" (written during the band’s pre-critical-acclaim period) over and over and over again in bars and commercials and so forth, and an injunction against further public nuisances, please let me know.  If we succeed, Dexys Midnight Runners, also still threatening to record, will be next.

Link: "Guitar Hero" article on Wikipedia