Hero Trumps Romantics

If you practice really hard, you could have an opportunity to try your hand at The Romantics' "What I Like About You" on Guitar Hero. Apparently, The Romantics weren't thrilled about video game immortality and they sued. The Romantics et al. v. Activision Publishing, Inc., et al. We'll discuss two theories of interest.

First, The Romantics asserted a violation of their right of publicity. The right of publicity is a state common law concept that protects an individual's right to commercially exploit their own name and likeness. Here, The Romantics sought to protect the sound of their voice, which they claimed was distinctive -- like Bob Dylan is distinctive. Michigan law has never recognized a right to protect the sound of a voice, even a distinctive voice. There is plenty of logic in this. Imagine all of the impressionists that would be out of work.

Second, The Romantics argued that Guitar Hero traded on their name in fame in selling the game -- a claim we lawyers call false endorsement. Again, The Romantics based their claim on their "distinctive sound.". Here too, the Court found no support for this position in the caselaw. On this claim, the Court concluded that The Romantics had failed to establish that the use of the song in the game was likely to cause confusion or mistake between the game version of the song and the original. There was no dispute that the song version of the game was a new recorded version, for which the game publisher had obtained a synchronization license. The result seems right to us. Any dissent?