Game On: Copyright and the Right of Publicity Battle for Supremacy in Romantics v. Activision

Does a rock group have the right to prevent a “sound-alike” recording of its signature song from being used in a video game when the game’s publisher has a license to use the underlying musical composition? This is one of the interesting questions arising out of a recent lawsuit by 1980s band The Romantics against Activision, publisher of the enormously successful “Guitar Hero” video game franchise. 1 The lawsuit stems from the 2007 release of “Guitar Hero Encore: Rocks the 80s,” one of several editions of Activision’s guitar simulation game (the Game). In addition to songs by such 80s staples as A Flock of Seagulls and Twisted Sister, the Game includes a cover version of “What I Like About You,” a new wave hit made famous by The Romantics (the Song). Activision did not use the master sound recording featuring The Romantics’ version of the Song, but instead obtained a “synch license” from EMI, copyright owner of the musical composition. 2 This license permitted Activision to record a new version of the Song and synchronize it with the game’s visual images. A cover band, WaveGroup, performed the new “sound-alike” version of the Song, which Activision incorporated into the Game