The 80s pop band The Romantics are suing the producers of the fabulously successful video game Guitar Hero. (Billboard story here.) The game includes a lawfully produced cover of The Romantics’ one and only smash hit, What I Like About You. The band apparently complains that the cover (by a company called Wavegroup Sound, apparently now riding a wave of fan interest as a result) is so good that consumers are likely to think that the band itself recorded it.
This argument is a cousin of the trademark claim that the Supreme Court killed off in Dastar v. Twentieth Century Fox. The band apparently reframes its argument in the language of publicity rights (Guitar Hero has mis-appropriated the “likeness” of the band via reproducing its distinctive sound), and therefore tries to thread the needle arguably left intact, post-Dastar, in cases like Wendt v. Host International. Like the claim in Dastar, it deserves to die the special death reserved for mutant copyright.
The producers of Guitar Hero procured a license to record the cover by following the requirements of Section 115 of the Copyright Act:
A compulsory license includes the privilege of making a musical arrangement of the work to the extent necessary to conform it to the style or manner of interpretation of the performance involved, but the arrangement shall not change the basic melody or fundamental character of the work, and shall not be subject to protection as a derivative work under this title, except with the express consent of the copyright owner.
Harry Fox, which offers mechanical licenses on terms comparable to those specified by the Copyright Act, follows the same principle. No cover license is available if the “fundamental character of the work,” i.e., the musical composition, is changed by the cover artist. Change the song too much, in other words, and you have to negotiate with the original songwriter directly. Now The Romantics come along and argue that the cover artist changed the song too little? The Romantics imagine that they sound as distinctive as Bette Midler and Tom Waits, each of whom won publicity rights claims against “soundalike” recordings. This is a “damned if you do, damned if you don’t” box that The Romantics are trying to create. That may be justification enough to distinguish this case from Midler and Waits. At least I hope that it is.
Update (11/23): Joe Gratz has more, including a copy of the Complaint.
I also think the soundalike exclusions from the sound recording right make this a clear case of conflict preemption, though I understand that Midler is to the contrary. It’s also an interesting phenomenon that defendants prefer to litigate 301 preemption, even when conflict preemption is a better match; I wouldn’t be surprised if the defense is framed in terms of 301 preemption even though the real tension with copyright law is conflict-based. But perhaps the court will reject Midler, not being bound by it — if we get a decision out of this.
Mike,
I’m not quite clear on how this is a “damned if you do, damned if you don’t” situation. Whatever the merits of The Romantics’ Midler-like claim (which sound pretty weak to me), wouldn’t one of Guitar Hero’s options have been to record the song using a band that didn’t sound like the original group? The “fundamental character” of the work referred to in section 115 seems, to me, to go to the composition itself, not to the way it’s performed.
Mike,
I don’t think sec. 115 would cover a video game, since it’s an audiovisual work, not a phonograph. Activision would have needed a synch license, which I assume it got from somebody–probably the publisher, EMI. The Romantics wrote the song, but they probably no longer control the publishing rights. The complaint is unclear on this, but it does note that the Romantics derive substantial income from performing the song and licensing reproduction of the master (and is silent regarding publishing revenues). Looks like the likely business issue here is a split in ownership of the rights–the Romantics make money when a third party uses the sound recording but may make nothing (or at least less) when the publishing rights are exploited. Wonder how long until their termination of transfer comes up?
Laura and Mark,
You’re both absolutely right that there is the “composition” and then the “recording,” and that the rights in each are distinct, that the distinction is a source of problems here, and that Activision at least technically had the ability to record a cover that didn’t sound like the original.
But while nothing in Section 115 requires that the cover artist distinguish the cover from the original (there are plenty of covers out there that sound a lot like the original), a cover version that deviates too far from the original isn’t covered by the license. If the publisher did give Activision a synch license (I may be able to find out the answer to this question; Bill Patry writes that Activision obtained a synch license), then it surely had the power to negotiate for a non-sound-alike recording (EMI presumably would care as much as the band about competition for the original), or to adjust the royalties accordingly, or both. (The fact that the publisher *didn’t* do this is what suggests to me that Activision acquired mechanical rights, rather than a synch license. Also, of course, a mechanical license would likely be much, much cheaper. But I will try to find out.) As Rebecca points out, Section 114 limits rights in the sound recording pretty substantially.
Conceptually, the distinction between the composition copyright and the recording copyright has never struck me as particularly persuasive, at least not in the context of contemporary popular music. “Fundamental character” in Section 115 does refer to the composition, but much contemporary popular music has no “fundamental character” beyond what is recorded in the studio. Go to the Rock ‘n’ Roll Hall of Fame and check out the scraps of paper and napkins where the “fundamental character” of famous pop songs got recorded. Certainly, those songs end up as sheet music, but those versions are often (if not always) post-hoc reconstructions based on the recordings themselves. Nor am I a big fan of Section 115 in general. If I were designing the system from scratch, I might merge all rights into the recording. Control over the master would govern control of covers.
As long as we have the system that we have, however, I don’t have a lot of sympathy for the band here. If you look at the game itself, you’ll see that The Romantics are credited with the song. This isn’t a question of undisclosed plagiarism. The game maker isn’t misleading anyone.
One might argue that a TM claim here should be decided on the facts; a sufficiently distinctive “sound” deserves protection. Tom Waits might pass that threshold, but The Romantics — a very fun but standard-issue power pop one-hit-wonder — absolutely does not. I don’t see the reason to subject courts and consumers to that risk. Rather than have Tom drive the TM train and let flaky claims in the courthouse door, I’m comfortable with a rule that denies TM relief if the copyright has been cleared.
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