The rock band The Romantics filed a lawsuit on November 20, 2007 against the producers of the video game Guitar Hero alleging, among other claims, violation of right of publicity, and moved for preliminary injunction preventing the manufacture, distribution, sale, or marketing of the game during the pendency of the civil action. The plaintiffs claimed that a substantial number of ordinarily prudent consumers of Guitar Hero have been, or are likely to be in the future, confused, deceived, or mistaken about whether the plaintiffs sponsored or endorsed the game.
Judge Nancy G. Edmunds of the Eastern District of Michigan recently ruled that the band was not likely to prevail in its cause of action because the game producers have a valid synchronization license to use the song. Furthermore, there is no evidence that players of the video game would think The Romantics were endorsing or sponsoring the game. The judge also determined that if the plaintiffs do win any of their claims, monetary damages will be sufficient compensation.
Guitar Hero includes the band’s popular song “What I Like About You” in its catalog of songs. The video game permits players to play along with musical compositions by utilizing a mechanical guitar with buttons to simulate guitar play. Defendants obtained a valid nonexclusive synchronization license from the owner of the copyright in The Romantics’ song. A synchronization license, in the context of a video game, permits the game producers to make a new recording of the song and to use that recording in synchronization with visual images in the video game to enable game play. In accordance with this license, defendants recorded a new version of the song which was incorporated, or synchronized, into Guitar Hero.
The court concluded that issuing the injunction would cause irreparable harm to the defendants, who have successfully negotiated with numerous artists to develop video game versions of songs. The version of The Romantics’ song in the game is conspicuously identified with the phrase “as made famous by The Romantics,” alerting players that the song on the game is not the version recorded by The Romantics. Judge Edmunds also determined that the defendants did not use The Romantics’ song in its advertising or marketing materials used to promote the game and defendants did not include The Romantics’ name nor the names of the individual plaintiffs in the product packaging.
The court applied a four-factor test to evaluate the plaintiffs request for an injunction:
1) whether plaintiffs have shown a strong or substantial likelihood of success on the merits;
2) whether plaintiffs have demonstrated irreparable injury;
3) whether the issuance of a preliminary injunction would cause substantial harm to others; and
4) whether the public interest is served by the issuance of an injunction.
The court found that the plaintiffs failed to state a claim for violation of their right of publicity because Michigan has never recognized a right of publicity in the sound of a voice, even if distinctive, nor has it recognized a right of publicity for a combination of voices. Additionally, not all of the plaintiffs performed on the original master recording of the song, and the lead singer on the original recording is not party to the suit. The court concluded that substantial issues regarding plaintiffs' standing to assert a right of publicity claim even if one were to exist.
The Court also applied a First Amendment analysis and determined that the Guitar Hero is an expressive artistic work entitled to First Amendment protection because the game contains significant transformative elements and is not likely to interfere with the economic interest protected by the right of publicity. Furthermore, plaintiffs’ state law claim is preempted by the Copyright Act. Finally, sections 106 and 114(b) of the Copyright Act permit the owner of a copyright in a musical composition to license others to make specified commercial uses of the composition. This expressly allows third parties such as defendants to make a sound-alike recording of a song.