The Romantics are suing the makers of the game Guitar Hero for including a cover of their song “What I Like About You” in the game.
Why? Did the game makers use the song without permission? Nope. They had permission.
So what’s the problem? Well, it turns out that the cover sounded too much like the original, and so “infringed the group’s right to its own image and likeness.” (I’d always thought “image and likeness” was a Biblical phrase, not a legal one.) “I was very upset,” explained the lead singer of this band that borrowed its name from an 1894 play by Edmond Rostand, “because the band had worked very hard over many years to develop and use its distinctive sound.”
Well, who wouldn’t be upset if somebody took away from them something they’d worked many years to develop and use? But I don’t see how this applies in the current case. Has the Romantics’ distinctive sound really been taken away? Did they go to practice one morning and suddenly find out that they sounded different?
And even if I believed in IP – which I don’t – I have trouble seeing how the Romantics have much of a case when they gave Guitar Hero permission to do a cover in the first place. Covers that sound a lot like the originals are not a particularly unusual phenomenon; indeed there are cover bands – and not just amateur ones either – that specialise in sounding like the originals. (For example, doesn’t the Swingin’ Swamis’ version of “Perhaps, Perhaps, Perhaps” sound a lot like Mari Wilson’s more famous version – which of course is also a cover?) It seems to me that when you give permission to do a cover, it’s a reasonable expectation that you might get an imitation of the original unless you specify otherwise.
I suspect what’s really going on here is that Guitar Hero turned out to be more lucrative than the Romantics expected, and they’re kicking themselves for not asking for a better deal up front – so they want to rewrite the contract retroactively. Money quote (literally), from a spokesman for the band: “The sales of this game are huge …. We’re all for good commerce. We just want to share in it.”
“Well, who wouldn’t be upset if somebody took away from them something they’d worked many years to develop and use? But I don’t see how this applies in the current case. Has the Romantics’ distinctive sound really been taken away? Did they go to practice one morning and suddenly find out that they sounded different?”
They could reply that it isn’t their sound that is being taken away but its distinctiveness. To which we could then counter by pointing out that no one has a right to be distinctive.