p2pnet news | Music:- “If the Romantics win on this one, then George Thorogood owes Bo Diddley every cent he ever made. And I don’t say that as a bad thing.”

That’s Fred Wilhelms on the news that the Romantics have sued Activision Publishing over its Guitar Hero videogame claiming the game’s version of ‘What I Like About You’ sounds too much like them.

Wilhelms goes on >>>

The Romantics, who recorded “What I Like About You” more than 25 years ago, have sued the makers of “Guitar Hero Encore: Rocks The ’80s” for what they think is a far too slavish copy of the original recording in the video game. According to the Billboard article, the Romantics believe the game version is “indistinguishable” from their recording, which, they fear, could lead consumers to erroneously believe the group endorses the game. They’re looking for an injunction against sale of the game, and an accounting for profits on sales to date.

There’s some history behind this kind of suit, and the precedents give the Romantics some hope.
Back in the 80s, Bette Midler sued Ford Motors for using a “soundalike” performer to sing “Wind Beneath My Wings” in a car commercial. She won a nice judgment.

Then, in the early 90s, Tom Waits sued Frito-Lay for appropriating his voice (and a Waits-like song) for a Doritos commercial. He also got a nice judgment in his favor, although he subsequently joked that he blew the money on candy.

There have been other such commercials and mostly out-of-court settlements. A Bell South commercial featuring a soundalike Sam & Dave on “Hold On I’m Comin’” to advertise *69 call-backs is one that I know of.

In the Waits and Midler cases, the companies and their ad agencies argued that because you cannot copyright a “voice,” that there was no protection for their use. The courts disagreed, saying that the commericals had wrongly appropriated the “property” of the artists. The Waits court went even further and said that the use of the soundalike constituted deceptive advertising under the Lanham Act because it misrepresented the origin of the voice on the commercial.

There were important questions of fact in the Waits case, and the Romantics chances of success turn on whether or not they meet the standards and convince a jury that the two recordings are close enough to be confusing, the the original recording was “distinctive,” that it was “widely known,” and that the copying was deliberate. They might have the “deliberate” part covered, as the complaint quotes an executive of one of the defendant companies as saying they did their best to sound like the original. The rest is, as they say, where the factual rubber has to meet the legal road.

If the Romantics’ court finds that “Guitar Hero” has simply appropriated the “style” of “What I Like About You,” it won’t be enough to prove damage has been done. I like the song, but Billboard says it never cracked the Top 40, and the vocal isn’t nearly as easily identified as Midler’s or Waits’. The opinion in the Waits case contains the following description of his voice:
“like how you’d sound if you drank a quart of bourbon, smoked a pack of cigarettes and swallowed a pack of razor blades…late at night. After not sleeping for three days.”

That’s pretty high literary style from a Circuit Court opinion.

From here, I don’t think George Thorogood has much to worry about.

Fred Wilhelms – p2pnet
[If the corporate music industry had any ethics, Wilhelms would be its 'ethicist-in-chief,' wrote CounterPunch's Dave Marsh. Wilhelms is an entertainment attorney based in Nashville, Tennessee. You can contact him at fred.wilhelms @ gmail.com.]

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Also See:
too much like them – The Romantics vs Guitar Hero, November 22, 2007

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This entry was posted on Tuesday, November 27th, 2007 at 9:43 am and is filed under Music. You can follow any responses to this entry through the RSS 2.0 feed. You can skip to the end and leave a response. Pinging is currently not allowed.

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