The Romantics Suing Over Cover Version Used In Guitar Hero: Apparently, It's Too Good A Cover

from the copyright-insanity dept

Mon, Nov 26th 2007 12:43am — Mike Masnick

Jennifer was the first of a few folks to alert us to the latest ridiculous copyright lawsuit. It appears that the 80s band The Romantics is suing Activision for the cover version of its song, "What I Like About You," being used in the Guitar Hero Encore: Rocks the 80s game released this past summer. The lawsuit is not because the song wasn't properly licensed. Activision properly licensed the song so it could have a band cover the song and use the cover in the game. The problem is that the cover band was too good, according to The Romantics. Yes, the band is complaining that the cover is so accurate it sounds just like the original Romantics' version, and therefore, is infringing on the band's rights. This is so ridiculous that it's worth repeating the details once again: The band agreed to a license allowing Activision to use a cover version of its song -- and then sued because the cover version was too similar to the original. The band is now claiming that Activision should have paid different (more expensive) royalties to use the original master recording. As ridiculous as this sounds, the band may actually have some (equally ridiculous) precedents to back it up. Other musicians have sued when properly licensed covers were used in commercials, claiming that even though the songs used were covers, they sounded too similar and people might assume that the musician endorsed the product in the commercials. In this case, though, there really isn't any question of endorsement -- and, honestly, the Romantics should probably be thrilled that anyone still pays any attention to the band at all, rather than trying to ban the sale of the new game (which, yes, it's trying to do).

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Filed Under: copyright, covers, guitar hero, the romantics
Companies: activision

37 Comments

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Jeff, 26 Nov 2007 @ 2:15am

the cover song
Here's a video of the cover version

http://www.youtube.com/watch?v=5VAag8Vxipc
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Anonymous Coward, 26 Nov 2007 @ 2:32am

Re: the cover song
OMG! They are suing over that version - It sounds awful and nowhere near the same quality as the original! Plus, it's also much slower (lower bpm) than the original, giving it less "get-up-and-dance" energy and more "fall-asleeep" Z's.
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Sean, 26 Nov 2007 @ 3:41am

Is it really so silly?
Music is about *sound*, right? If you want that original sound, you have to pay the fees. If you want to cover it, you're licencing the music and the words, not the sound, for the purpose of reworking it and making it something new. No way anyone is going to mistake Ronan Keating for Garth Brookes listening to "if tomorrow never comes" (and it can't come quick enough, listening to that rubbish!)

Looks to me like it's a fair cop if Activision opted for the cheaper licence and tried to reproduce the sound on the sly. After all, this is the band's income we're talking about.
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Todd, 26 Nov 2007 @ 4:16am

Stupid. Thanks, Jeff for the video. It sounds similar but not really That similar. The singer tried to make the voice of the original, but doesn't sound that much like it.
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Kyros, 26 Nov 2007 @ 4:27am

Sean, They paid to have a band reproduce the song. They didn't "buy" the lyrics of music, they bought the rights to reproduce the sound. If they're reproduction is claimed to be similar to the original, what does it matter? Apparently the romantics feel they can sue because they didn't create anything unique.
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Anonymous Coward, 26 Nov 2007 @ 4:56am

Ummm, don't "tribut bands" (aka cover bands) emulate and try to sound like the original? Err, isn't that the purpose?

I guess the lawyers need some kind of clause in the contract like, "and if you change your mind because you want more $$ - you can't make up some bs."
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xtrasico, 26 Nov 2007 @ 5:27am

Agreed...
I agree with A. Coward @4:56am. Nice clause to have in a contract.
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Anonymous Coward, 26 Nov 2007 @ 5:30am

isn't that the whole point of a cover band?
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Vincent Clement, 26 Nov 2007 @ 5:37am

I guess Activision can always remove the Romantics song from future pressings of the game. Yet another stupid lawsuit in a long string of stupid lawsuits.
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vin, 26 Nov 2007 @ 5:50am

no way, sean had it right
Say someone wanted to remake a movie. There is, of course, a big difference betwen hiring all new actors and a new director who has his/her own spin on things, versus hiring the exact same actors and set designers, and just saying "alright everyone, make this be exactly like the old movie"
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Anonymous Coward, 26 Nov 2007 @ 6:16am

Re: no way, sean had it right
What about the remake of Psycho done about ten years back? They made it a point to show that it was being remade almost shot for shot even in the advertising.
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Ima Fish, 26 Nov 2007 @ 6:42am

God, this is frivolous. I assumed they were suing because the cover version infringed a copyrighted arraignment of the song. Merely obtaining rights to cover the song does not give you the right to cover every arraignment of the song.

Sure, it's tricky to give someone rights to a song but not the arraignment with which everyone is familiar.

But if the whole argument is that the song sounded "too similar" to a song Activision had full rights to, well, that's complete BS.
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Danny, 26 Nov 2007 @ 6:53am

I like Vincent's idea. That way the people that have those ****RARE!!!!!!**** copies with the Romantics song it will go for lord knows how much on ebay.

But seriously I think removing the song would be a good idea. Not only remove that song but teach them a lesson by NEVER offering to put their songs in any future music games. Music games are a hot item these days and nearly forgotten 80s should be thankful that people remember them well enough to want to keep their hits alive in any format. It is a known fact that most of the songs that used in Guitar Hero are covers. Just before the track starts look at the title it will ususally say "________ made famous by ________". And for the few songs that are from the original artist don't they say "_________ by_______"?

If The Romantics get there way they will set a pretty damning precedent. Imagine if all of a sudden bands could start suing other bands (original, cover, tribute, or whatever) because they sound the same. The music industry has not gotten as bad as the recording industry yet but if this goes down in favor of The Romantics that would be true for long.
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Overcast, 26 Nov 2007 @ 7:20am

Good - get that crap off of there. Who'd want their music on a video game anyway?

I always HATED that song.

Get it off the radio too, while you're at it.
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You Never Know, 26 Nov 2007 @ 7:26am

It doesn’t matter if the music (or sound if you will) is too similar or not, if you license the song to be used by another artist or cover band that’s it. If Activision clamed or even implied it was actually the original band then there would be grounds a case. But then again lawsuits now days are far from being about law or justice, much less protecting individual rights, it’s about profit. Now if The Romantics think they have a good case lets see them forfeit the licensing fees and take their chance in a court of their peers (Fan’s) then more power to them. Some how I think there is a snowballs chance in hell for that one…
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Barrenwaste, 26 Nov 2007 @ 7:38am

People have gotten away with this?
Once they license the song they have the right to recreate it however they choose. They can make an exact duplicate using different band memebers or turn a polka into a rap. That's why they had to pay the licensing fee rather than just the royalties of using a copy.

It sounds to me like the band is trying to use the legal system to renegotiate thier fees. In some cases, I would have to say that was quite right, ie. a college student gets snookered out of rights for couple hundred bucks, but these are well seasoned vets of the music wars. This being the case the Judge should almost immediatley hit them with contempt of court and fines, including any lost revenue due to the court case delaying production and distribution of the game. Usually I do not condone stiff penalties in court cases, especially considering what society seems to think is leniency these days, but it's time that the courts smacked the stupid out of our more sue happy brethren.

It's rediculous what I have been seeing hitting our courts. "He kicked my cat!", well stupid, you shouldn't have let it wander onto the guys property and scratch his kid. "This coffee is so hot it burned me!", well moron, you did order hot coffee. The courts are not a substitute for common sense, or they shouldn't be at least.
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Nick, 26 Nov 2007 @ 7:42am

The suit isn't that frivolous if you look at it from an endorsement perspective. The Romantics can't stop other people from making cover versions of their songs; all a band needs to do is pay a statutory royalty and they can play a song however they like. The problem is that if the cover version in Guitar Hero sounds too much like the original, then dopey kids who may not ever have heard of the Romantics will think it's actually them singing the song and that the Romantics somehow wanted to be included in the game. It's very well possible that the Romantics didn't want to be involved with Guitar Hero, but since they can't stop people from making covers, they simply took the cover band royalty and left it at that. Once the cover band impersonates the Romantics too closely and puts the song in the game, the Romantics have lost their ability to endorse or be involved with the commercial products it wants.

I remember seeing recently an article about how games like Guitar Hero lead to increased sales of the music included in the game, which means more money for any band lucky enough to have its songs included, but that's not the point here. As a band (and I'd even argue as individuals with their own separate rights) they have the right to control, within certain bounds, how their names, likenesses, and sound are used by others to make money that doesn't filter back to the band's pockets. The extra album sales from being in the game is great for sure, but Activision is more or less saying "We're not going to pay you to include your song, but we'll pay less to have someone cover it so it sounds like you, so we get the song we want for the price we want. Don't worry, people will go out and buy your cds, but we'll keep all the money from the game." That's a raw deal.

And btw, pretty much all Activision has to do to make this go away is calculate how much they would have paid had they used the original song. Since it's a hit game, that shouldn't be that hard to do.
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Anonymous Coward, 26 Nov 2007 @ 8:01am

Okay, the guy "singing" this song (if that's what you call it) leaves a lot to be desired. I have heard the original, and this is definitely NOT the original. Good grief, how much can you change a song to make it not original before it becomes something different altogether? This is a seriously lame lawsuit. If they license the song for use, it should be licensed for use, period, not subject to highly arguable nit-picky details.

And btw, has anybody but me noticed how this game appears to be nothing more than a reworked version of DDR? Seriously, when are they actually gonna start making some original games again? I'm sick of going into the local retail outlets and seeing half the available video games be lame ripoffs of kids' movies. And the other half is typically blood/gore/guts crap that doesn't interest me at all. I want something new, something fresh, something that makes a $250-400 game console worth the money, not just the same old stuff redone to death.
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ehrichweiss, 26 Nov 2007 @ 8:04am

Re:
"They didn't "buy" the lyrics of music, they bought the rights to reproduce the sound."

Wrong answer. They bought the rights to use the lyrics and music, not to replicate the sound. In order to replicate the sound they would have had to pay for the "performance rights" and that tends to cost lots more than simply using the words/music.
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ehrichweiss, 26 Nov 2007 @ 8:07am

Re:
Tribute bands may do their best to sound like the original but the problem would come the moment they tried to sell something(other than a live performance) that had them doing said cover as they'd be then liable for "performance rights" which are much more expensive.
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ehrichweiss, 26 Nov 2007 @ 8:12am

Re:
You need to think about the case where, IIRC, Ford Motor Company licensed a Bette Midler song and then used one of Bette's backup singers to do the song for their commercial so it would sound like her without the need to pay her to perform it. Bette sued and won.
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ehrichweiss, 26 Nov 2007 @ 8:13am

Re: People have gotten away with this?
"Once they license the song they have the right to recreate it however they choose."

Nope. See my above example about Bette Midler vs Ford Motor Company. This has been the case for years.
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Lene Barnes, 26 Nov 2007 @ 8:22am

This is your typical "has been" band trying to get publicity once the show is over. Long since forgotten was the name of this band even though the song in question is still a tune that sparks nostalgia. 9 out of 10 people couldn't tell you who wrote it. To the Romantics...Dont go away mad. Just go away.
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nipseyrussell, 26 Nov 2007 @ 8:54am

"no way, sean had it right by vin on Nov 26th, 2007 @ 5:50am
Say someone wanted to remake a movie. There is, of course, a big difference betwen hiring all new actors and a new director who has his/her own spin on things, versus hiring the exact same actors and set designers, and just saying "alright everyone, make this be exactly like the old movie"""

even dumber than the comment you are agreeing with! They didnt hire the same people....if they did, then the romantics would have been paid and would have even less to complain about then they do now (which is nada!)
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Anonymous Coward, 26 Nov 2007 @ 9:19am

Re: Re:
Tribute bands may do their best to sound like the original but the problem would come the moment they tried to sell something(other than a live performance) that had them doing said cover as they'd be then liable for "performance rights" which are much more expensive.
According to the story, the band isn't suing over "performance rights" (which I suspect Activision had) but over supposed infringement of the band's "image and likeness". That's altogether different.
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java, 26 Nov 2007 @ 9:22am

""They didn't "buy" the lyrics of music, they bought the rights to reproduce the sound."

Wrong answer. They bought the rights to use the lyrics and music, not to replicate the sound. In order to replicate the sound they would have had to pay for the "performance rights" and that tends to cost lots more than simply using the words/music."

If they purchased the rights to the music, then they purchased the rights to reproduce that music. Music which contains, notes, chords, pitch, etc.

How can one reproduce the music without reproducing the sound? Sure, you could hire a singer that does not hit the same vocal range, but if someone is good enough to reproduce the music exactly as the original, then techically, it is still a cover version since the original band members were not used in the recreation process.

Seems like a weak case to me.
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Sean, 26 Nov 2007 @ 9:58am

Re:
nipseyrussel, do you have an actual reasoned opinion or do you just pick random comments to call dumb?

From the linked article;

"Artists such as Tom Waits and Bette Midler have won legal victories on similar grounds for sound-alike recordings used in TV commercials. In those cases, the imitation recordings were ruled to have infringed the artists' rights to publicity by leading consumers to associate the artist with the advertised product."

In Tom Waites case, he sued not because they used his material, but because they used a *sound* that SOUNDED like him, and he got almost a $100k in a Spanish court. So I reckon The Romantics (note, proper nouns please) have a pretty good case in protecting their sound from unlicenced exploitation.
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Luke, 26 Nov 2007 @ 12:51pm

Made famous by?
There's a big difference with Guitar Hero, though, and that's that it specifically says "made famous by _______" when a song is a cover version. For a TV commercial, on the other hand, there is no written disclaimer that says, "not Bette Midler" when a commercial's playing.

Seems to me Activision may have its butt covered.
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Clueby4, 26 Nov 2007 @ 2:24pm

Oh the irony...
I'm trying not to be mildly amused by the idea of a group of copyright whores being attacked by another group of copyright whores. I'm however saddened by the lack of mutually assured destruction
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Betaflame, 26 Nov 2007 @ 2:54pm

Re: Is it really so silly?
So the band should get paid for someone else's work? (Someone else played the song, someone else recorded the song.) Yes it is silly to think that these guys still get paid for sitting around on there butts while other people do the work.
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Anonymous Coward, 26 Nov 2007 @ 5:09pm

Re: Re: Is it really so silly?
Yes it is silly to think that these guys still get paid for sitting around on there butts while other people do the work.

That sounds more like what patents are for.
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Raymond, 26 Nov 2007 @ 10:20pm

Whats in there wallet?
Hello, i am a band past my prime... Im looking for the easiest way to fill my wallet back up.

i have heard a rumor about filing a lawsuit against developers for making a song that sounds so much like our original... any truth to this matter..

Seriously though... that is what that game is about.. sounding like the original... seriously... they brought Bret Michaels in for the lyrics on Talk Dirty to Me..... some of there covers are kind of lame.. like anything that has Ozzy in it for instance, he has such a unique voice that you can not replicate, and one of their guitarists was like missing a finger, so another quirk that is hard to replicate..

I think the band at Harmonix and activision tries to replicate the songs as best as they can, but as i just mentioned there are some things that you just can not do.

So.. no... not a valid lawsuit... just ask the guys from The Romantics...

Can you Say "Paper or Plastic??????"
Or "You want fries with that?"
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ehrichweiss, 27 Nov 2007 @ 12:15pm

Re: Re: Re:
Nope, performance rights would have given Activision the ability to play the original song, not just use a cover and if that were the case then we wouldn't be having this discussion.
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Anonymous Coward, 27 Nov 2007 @ 1:52pm

Re: Re: Re: Re:
That's precisely what makes the story newsworthy. I'm assuming that you actually read the USA Today story and aren't just popping off without having done so. In that case then you are basically accusing USA Today of publishing an untrue story but you aren't providing anything to back it up. So please tell us, what is your source of information on this story that contradicts the USA Today writer? And have you contacted that writer to get their response to your claims? If so, what was their response? If not, then why not?
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gdizzle, 4 Jan 2008 @ 8:08pm

But #1: Isn't half of this band dead? Who is actually suing? And saying the cover is too close, is rally dumb. The only chance they got is if the singer is imitating or doing an impression of Joey.
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rational thinker, 18 Apr 2008 @ 5:40pm

The Romantics need to remove their heads from where they are quite evidently lodged. Guitar Hero is a tribute to the originals it hosts; the covers are redone by no-name artists, are lacking in vocals, and are purely designed to be played along to, not to become the next big cover version hit.
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