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Can a band that licenses a song be sued for making a cover version sound too much like the original? That’s the core issued raised in an unusual publicity rights suit filed in Detroit by ’80s rockers the Romantics over the alleged misuse of their hit “What I Like About You.”
The song is included on “Guitar Hero Encore, Rocks the 80s,” one of a series of interactive (and hugely popular) video games that tests the ability of the user to press buttons on a simulated guitar in time with the buttons that appear on the video monitor. “Guitar Hero” publisher Activision licenses rights to songs and then has WaveGroup Sound, a collective of musicians, record cover versions of them.
But according to the Romantics’ complaint, the cover of “What I Like About You” is so slavishly faithful to the original that it amounts to “intentional misappropriation of Plaintiffs’ identity and persona and imitation of their distinctive sound.” In a motion for a preliminary injunction, the band says the well-known 9th Circuit cases involving singers Tom Waits and Bette Midler have clearly established that sound-alike recordings “cannot be used for commercial gain.”
The case could be one of first impression in the 6th Circuit. Intellectual property experts suggest the issue may be preemption — if the sound-alike recording is OK under Federal copyright law, it could preempt any state-law publicity claims.
Says copyright expert, Google senior copyright counsel and former professor William Patry on his copyright blog:
I think there is an excellent preemption argument based on section 114 [of the Copyright Act]: it is true that section doesn’t create an express right to make sound alikes — it instead says the copyright owners can’t stop sound alikes. But the federal policy of permitting sound alikes is the same regardless of how the section is phrased.
In the Waits and Midler cases, moreover, the defendants were accused of making sound-alike recordings for use in TV commercials rather than in cover versions.
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