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Guitar Hero Maker Sued - Cover Song Too Awesome 190

Posted by Zonk
from the harshing-your-groove dept.
volpone writes "The band "The Romantics" are suing Activision over their wedding reception favorite, 'What I Like About You,' which appears in Guitar Hero Encore: Rocks the '80s. The problem is not copyright infringement; Activision had permission to make a cover version of the song. No, the problem is that the cover sounds too much like the original. 'The band's attorneys have indicated that they are seeking an injunction that would force the game to be withdrawn from sale. Although around half of the songs in the newly released Guitar Hero III: Legends of Rock feature recordings by the original artists, in previous Guitar Hero games the majority of songs were cover versions.'" In not totally-unrelated news you can download the Mjolnir mix of the Halo theme for play on GHIII, free, today.
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Guitar Hero Maker Sued - Cover Song Too Awesome

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  • by hsdpa (1049926) * on Thursday November 22, 2007 @08:34PM (#21450245)
    By taking the Fourier-transform of the song, and then the Inverse Fourier-Transform, you're making a cover. A remix by most - but not a plagiate.
    • by cacepi (100373) on Thursday November 22, 2007 @08:43PM (#21450295)

      By taking the Fourier-transform of the song, and then the Inverse Fourier-Transform, you're making a cover. A remix by most - but not a plagiate.
      Dude, this is Guitar Hero; speak English for Christ's sake!
      • by Anonymous Coward on Thursday November 22, 2007 @09:02PM (#21450419)
        "Dude, this is Guitar Hero; speak English for Christ's sake!"

        "Slashdot, New for nerds and stuff that matters".

        Okay, so you failed at math and you are visiting the wrong site. Double-whammy.
        • RAY DAVIES (Score:4, Insightful)

          by Jeremiah Cornelius (137) on Thursday November 22, 2007 @09:32PM (#21450577) Homepage Journal
          The bloody Kinks oughta sue the Romantics, in such a world! "What I Like About You" is pretty much an early Kinks pastiche. Fits right in with "'Till the End of the Day", "All Day and All of the Night", "You Really Got Me" and "Stop Your Sobbin'".

          Maybe what's left of the Yardbirds can get in the act, too! That "Hey!" in the song comes right out of "Over, Under, Sideways, Down".

          Come to think of it, that last song is just "Rock Around the Clock" with some awesome guitar work by Jeff Beck. Oh!

          Fuggeddiboutit.
          • 3-chord covers (Score:5, Insightful)

            by weighn (578357) <(weighn) (at) (gmail.com)> on Thursday November 22, 2007 @09:54PM (#21450689) Homepage

            "What I Like About You" is pretty much an early Kinks pastiche.

            Ditto Gloria and a million songs that go E-A-D.

            According to TFA, the attorneys say that publishing an accurate cover is "infringing on the group's rights to its own likeness".

            FFS, we are talking about a 3-chord riff that a child could master in 10 minutes.

            can someone explain to them the purpose of a cover song? I hardly think that the makers of GH would want re-interpretations of original songs on their product.

            • What makes "Gloria" - and all the aforementioned 3-Chorders so great, is the delivery and presence of their presentation.

              Van Morrison in '64? Geez! How could this Belfast leprechaun do that?
            • Re:3-chord covers (Score:5, Insightful)

              by shark72 (702619) on Friday November 23, 2007 @01:23AM (#21451619)

              "can someone explain to them the purpose of a cover song? I hardly think that the makers of GH would want re-interpretations of original songs on their product."

              Sorry -- there's precedent here. If you deliberately do a cover that sounds too much like the original as to cause confusion, you're likely to be sued. Maybe this is one of those cases where the rest of the world really needs a good explainin' from the Slashdot populace, but nonetheless, this is how the rest of the world works for the time being.

              For those of you with Westlaw, look up Midler v. Ford Motor Company. Ford hired one of Bette Midler's background singers to do an exact copy of Midler's vocal style on a cover of one of her songs ("Do You Want To Dance") for an ad for the Mercury Sable. They did this because it was cheaper than hiring Midler, so they set out to attempt to confuse the audience. It worked -- I knew people who swore that it was the Bette Midler version. Midler sued; Ford lost.

              What the makers of GH want has absolutely no bearing here. What matters is what they are legally entitled to get. If you don't want to pay up to use the original recording, you don't get to record a soundalike. To avoid being sued, you do a re-interpretation, no matter how much you want something that sounds just like the original article, without having to pay for it.

              This is little band vs. big corporation here. I can't believe that some people think it should be simple as "explaining" to the band that they have no case because the big company wanted an exact copy of their song, but didn't want to pay for the privelege. Big companies should not have the ability to trample the little guy's rights simply because they "want" something. Sure, it happens enough... but why are Slashdotters suddenly supporting this notion?

              • Re: (Score:3, Insightful)

                by mabhatter654 (561290)
                copyright is copyright... they PAID for a copyright license to the owners of the music and lyrics. That's probably NOT the actual band that made the piece famous. Getting into sound-alikes of 20 year old pieces is a bit silly, the band should have taken what the publishers offered in the first place, even if they win it will all go to lawyers and they'll still put LESS into their pockets. I've seen the box and the artist/tracks are clearly labeled on the OUTSIDE of the package as covers or originals. The
              • Re:3-chord covers (Score:5, Informative)

                by xigxag (167441) on Friday November 23, 2007 @03:16AM (#21451997)
                1) Why the assumption that Activision is the big bad in this case? They may have done a perfectly ordinary cover, and the judge may completely dismiss the Romantics' case. Or not, but it's fairly common for cover artists to try to emulate the original sound.

                2) I think it's at least possible the people are objecting to this case not out of a love for Activision, but out of the principle that intellectual property rights should be as least restrictive as possible. That is of high concern to many of us "slashdotters," one which might override concerns about which party is David and which is Goliath.

                3) In Midler, there are several facts to the case which may be different from The Romantics.

                First, we know for a fact that Ford attempted to negotiate with Midler for her performance and she refused. We don't know that in the case of the Romantics.

                Second, Young & Rubicam, the ad agency, admitted at trial that they instructed Midler's backup singer to sound as much as her as possible. There's no evidence of those kinds of machinations here, yet. And even if there were, the law makes clear that "mere imitation of a recorded performance would not constitute a copyright infringement even where one performer deliberately sets out to simulate another's performance as exactly as possible." There has to be more than that -- see below.

                Third, at the outset of negotiations, Midler's lawyer asked, "Is it a commercial?" was told yes, and responded, "We are not interested." Clearly Midler did not want her vocals to be considered an endorsement of an advertised product. Perhaps she was opposed to Ford's labor practices or simply preferred BMWs. The point is that a listener might reasonably infer that Midler was endorsing the prodcut through her vocals, and might form an untrue opinion of her character. The Romantics' (apparent) performance in GH does not imply any endorsement of a specific commercial product, and therefore it's possible a court will decide that it is not a misappropriation of their identity, regardless of the degree of verisimilitude.

                The text is available online [google.com]. People can reach their own conclusions.
                • by sacrilicious (316896) on Friday November 23, 2007 @10:36AM (#21454095) Homepage
                  Third, at the outset of negotiations, Midler's lawyer asked, "Is it a commercial?" was told yes, and responded, "We are not interested." Clearly Midler did not want her vocals to be considered an endorsement of an advertised product. Perhaps she was opposed to Ford's labor practices or simply preferred BMWs. The point is that a listener might reasonably infer that Midler was endorsing the prodcut through her vocals, and might form an untrue opinion of her character. The Romantics' (apparent) performance in GH does not imply any endorsement of a specific commercial product, and therefore it's possible a court will decide that it is not a misappropriation of their identity, regardless of the degree of verisimilitude.

                  Agreed. To me, this third point is the most damning to whatever case the Romantics might have.

                  I find myself wondering: what damages do the Romantics suppose they have endured? Given that they were prepared to have their song covered in the game, the only motivation for suing that I can think of is that the Romantics don't like the idea the world might think that the actual Romantics participated in the making of the game... because (and I'm grabbing at straws here) that might mean the Romantics are washed up? But if game players assume they're hearing the Romantics, I don't think game players would notice or care, at least not to the Romantics' detriment. The songs making it onto the game are arguably the greats/classics... GH isn't looking to include crap, for obvious reasons. And there's no reason to suppose that the Romantics played the song again instead of simply giving access to the originally recorded tracks anyhow.

                  I just don't get where the Romantics are coming from on this. It's what I dislike about them. Won't keep me home at night though.

              • Re: (Score:2, Interesting)

                by MarkAyen (726688)
                Aren't situations like this the reason we use contracts? Without seeing the provisions of the actual contract, speculation as to who's in the right is pointless.

                TFA certainly doesn't have enough information to reach anything like a reasoned conclusion. Either party could be in the right. That said, it seems to me that the contract language would have to be pretty specific for the Romantics to have any kind of legal basis for their complaint.
            • Re:3-chord covers (Score:4, Informative)

              by daBass (56811) on Friday November 23, 2007 @04:26AM (#21452283)
              That they are three simple chords isn't really the issue here; there are tonnes of musicians out there that can play a song the same as "the original".

              Much more important here is most likely the work of the recording and mixing engineers (and not to mention the instrument technicians, keyboard programmers, etc.) that managed to make it *sound* the same as the original recording.

              That said, I agree it should not make a difference, a cover is a cover and the *sound* of the recording is not copyrighted, only the music and the recording itself.

              A couple of years back I read an interview in "Sound on Sound" with a producer of cover music for use in commercials that specialized in copying the sound. Quite often, the advertiser wanted an original song but could not get a license at any price. More than once, when the rights holders heard the re-recording sounding almost indistinguishable from the original they relented and decided they might as well get paid for it and allowed the original to be used.

              Interestingly, the same technique applies to "Greatest Hits" albums by label-hopping artists. A prime example is Tina Turner's greatest hits that contain only original recordings from one label and the rest are remakes that sound almost exactly the same as the originals. In studying the liner notes, you can see all the same musicians on all tracks, all recorded in the same place by the same people - different ones from those that did the original recoding.
          • Re: (Score:2, Funny)

            by mfnickster (182520)

            The bloody Kinks oughta sue the Romantics, in such a world! "What I Like About You" is pretty much an early Kinks pastiche.

            The Kinks oughta sue themselves for plagiarism. "Paranoia" is essentially the same song as "All Day and All of the Night." :)

        • by MadJo (674225)
          How do you perform a double whammy with the whammy bar?
        • I don't think the guitar controllers for the game have any whammy-bars?
          • by slim (1652)
            They do have tremolo bars, and you should tremolo long notes for extra Star Power, to get extra points.
  • by base3 (539820) on Thursday November 22, 2007 @08:41PM (#21450283)
    A washed-up 80's band with two hits to its name sues because a cover band was able to duplicate their syrupy bubble-gum pop sound. The mind boggles.
    • I'm impressed they have a good lawyer. Guitar Hero must really bringing in the money for them.
    • Re:Wow, just wow. (Score:5, Informative)

      by weighn (578357) <(weighn) (at) (gmail.com)> on Thursday November 22, 2007 @10:04PM (#21450733) Homepage

      A washed-up 80's band with two hits to its name...
      For those playing at home, the other "hit" was Talking In Your Sleep in 1983. I'd hum a bar for you, but it can't have been too memorable.
      • Wait...they sang "I hear the secrets that you keep, when you're talking in your sleep"? Oh man...I hope they lose it all in this suit (I kid, I kid...I actually enjoyed both their songs...no please, don't burst my bubble and claim they had other songs...I refuse to believe that)
    • by Wildcat J (552122) on Thursday November 22, 2007 @11:28PM (#21451131)
      I heard a funny story about them, which may or may not be true:

      The Romantics played here in Tucson a few years back for a local festival-type show (either "Nightmare on Congress" or "Fall Crawl"--mostly local bands, including one I played in at the time), and a fairly well-known local band let them rehearse in their practice space. Someone walking through the hallway heard them and commented that it sounded like a really crappy Romantics cover band. If only they knew!

      • Re: (Score:3, Funny)

        by TheRaven64 (641858)
        So, if they sound like a crappy cover of themselves, and the track in question sounds like a good cover of them, then by definition it doesn't sound like them...
  • by mgkimsal2 (200677) on Thursday November 22, 2007 @08:46PM (#21450321) Homepage
    It's a pretty darn easy song (many popular songs are) so I'm not surprised to find that it's very 'close to the original'. If they had proper permission to include a 'cover' of it, what did they expect? I love the song, and am a sucker for bubblegum/powerpop type stuff, so perhaps that's why I can't see the problem with the cover here. Won't it potentially drive some more sales for their other stuff from people who learn about them through the game? Or perhaps it's because it's so close people won't bother going to buy the original or other Romantics tunes?
    • by BronsCon (927697) <social@bronstrup.com> on Thursday November 22, 2007 @08:56PM (#21450377) Journal
      Who cares. Presumably, "have permission" means "paid for permission", which, in turn, most likely means "pays royalties on every copy sold", which translates directly to "the label is being paid", which we all know really means "the artist isn't seeing a penny from the label", which means...

      Oh. Right. In that case...
      • by aussie_a (778472)
        Perhaps they should sue themselves then for signing away their rights for unfair compensation.
        • by weighn (578357)

          Perhaps they should sue themselves...
          now there's a plan
          1. sign dodgy contract - Sony is always a good agent for this
          2. write one-hit-wonder - having your label buy a load of copies helps at this stage
          3. sue yourself
          4. ...
          5. profit
          • Re: (Score:2, Insightful)

            by ThisIsForReal (897233)
            Yeah, the lawyers will tell you the last step is profit, but the small print will read (for the lawyers).
          • by Steve001 (955086)

            I remember a news story a couple of years ago where John Fogerty got sued for sounding too much like John Fogerty.

      • by Jay L (74152) <jay+slashNO@SPAMjay.fm> on Thursday November 22, 2007 @10:10PM (#21450767) Homepage
        Presumably, "have permission" means "paid for permission", which, in turn, most likely means "pays royalties on every copy sold", which translates directly to "the label is being paid", which we all know really means "the artist isn't seeing a penny from the label", which means...

        Not necessarily. I studied this for an entire semester, but I've apparently blocked it all out.

        There are a bunch of different kinds of music "rights" - around six or seven basic ones, IIRC.

        The important distinction here is between the rights to the song - the melody, chord changes, lyrics - and the rights to the recording. We don't care about the recording here, because we're making a new one.

        The song isn't owned by the record company (again IIRC). Whether it's owned by the publisher, or the composer, or various artist's collectives, I couldn't tell you anymore. And, of course, sometimes the publisher is the label; a lot of times, the publisher is the songwriter (who may or may not be the artist).

        Some of these rights are compulsory - that is, in lieu of actually negotiating individual agreements, the licensing fees are just declared by law or regulation, and you've implicitly agreed to them by copyrighting something. Some are in theory not compulsory, but are in practice always negotiated by the same group at the same rates (e.g. the Harry Fox Agency). Some are covered by international conventions, some aren't. And so on.

        So without seeing the actual contract The Romantics signed, it'd be hard to say if they got money out of Activision's existing license. (Even seeing the contract might not clear it up; naturally, everyone involved is trying to get more than their share, and sometimes that means writing contracts that confuse artists, if you catch my drift.)

        And, of course, when the song was written originally, the concept of "videogame rights" was nonexistent, so who knows what part of their contract would cover it now...
        • by xenocide2 (231786)
          Actually, I think we do care about the rights to the recording, since their objection is that Harmonic's recording of their song sounds too much like theirs, even though they apparently paid for the rights to make a new recording of it. I think the best we can really say about this mess is that making music records is like making sausage.
        • by DannyO152 (544940)

          Wasn't there a standard clause about unknown future media in the publishing agreements back in the 80s? I seem to remember seeing that in the boilerplates shown in the "Business of Music" books. Plus, video games were around in the mid-80s. In answer to your question, I'm sure that the songwriters and their publishers are getting money for the song's use. It is a derivative work. Not that I'm a lawyer, etc.

          As I understand it, arrangement is not copyrightable. And what is the "sound" any way except a combin

      • by Firethorn (177587) on Thursday November 22, 2007 @11:14PM (#21451053) Homepage Journal
        It doesn't have to be 'paid for every copy sold'. Activision and "The Romantics" agreed on a contract. For a sum of money based on a pre-agreed formula, the company was allowed to do a cover song for the game. This sort of stuff is pretty standard, maybe not for a game, but for things like movies, karaoke, remixes, etc...

        If I was judge over this case, one of the first things I'd ask if there was some stipulation in the contract as to the quality of the song. If it's not in the contract and they waited until it came out, didn't insist on having editorial control in the contract, too bad.

        Normally, I'd support the band against the big company, but in this case it simply sounds like the band is trying to shake the company down for more money. You see, if they asked for too much money in the beginning, Activision would have simply not included that song and gone for a different one.

        However, they know that once the game has been produced, the discs pressed and shipped to stores, that it's too late to pull the song without massive expense. So they come up with some bullshit excuse like 'the cover song is too good so it violates our copyright/trademark' I mean 'rights to it's own likeness' is NOT a protected right. They're probably hoping for a out of court settlement.

        Personally, if this is the case I hope they get squashed and end up burning what they were paid to have their song in the game to pay their and Activision's lawyers. Of course all this is a reaction based on the story. I reserve the right to change my views if further information turns up that changes the situation.

        This is little different than the old scam of finding some reason to sue a company(mental suffering was popular), then carefully asking for a settlement that would be less than what court costs to successfully fight it would be. Many businesses folded, paying to satisfy the accountants until it was pointed out that it was cheaper to fight 1 of these cases than to pay a hundred, which was the case. It's an old principle - you pay the Danegeld, you never got rid of the Dane.
        • Re: (Score:3, Interesting)

          by DM9290 (797337)
          "Activision and "The Romantics" agreed on a contract. For a sum of money based on a pre-agreed formula, the company was allowed to do a cover song for the game. "

          A cover is not the same thing as deliberately contriving to fool the audience into thinking they are hearing the original band performing the song. If your cover sounds so much like the original band that a reasonable person would be confused and think that it is the original, then you are copying their likeness. This would be exasperated if you u
      • Re: (Score:3, Interesting)

        by shark72 (702619)

        "Who cares. Presumably, "have permission" means "paid for permission", which, in turn, most likely means "pays royalties on every copy sold", which translates directly to "the label is being paid", which we all know really means "the artist isn't seeing a penny from the label", which means..."

        Huh? We're talking about publishing rights here. Publishing rights typically don't go through the label. If you record a cover version, you're dealing with an entirely different set of people; often the composer an

      • by shark72 (702619)

        Sorry, another reply to the same post. This is from the Detroit Free Press writeup:

        Horton said Activision should have secured a master license for the Romantics' original 1980 recording, then paid appropriate royalties. He said the band became aware of the issue when fans said they'd heard the song in the game but members saw no accounting for it on their record-label royalty checks.

        What do you make of the band members' claim that they get record-label royalty checks, when (as you wrote it) "we all know"

    • Re: (Score:3, Interesting)

      by Osty (16825)

      Won't it potentially drive some more sales for their other stuff from people who learn about them through the game? Or perhaps it's because it's so close people won't bother going to buy the original or other Romantics tunes?

      Guitar Hero III is actually driving online sales [kotaku.com] of songs in the game, though the effect is not so clear on physical album sales. I would expect that even cover songs drive sales, with better covers driving even more sales. Assuming the Romantics have songs available on various onlin

    • by The Evil Couch (621105) on Thursday November 22, 2007 @09:36PM (#21450607) Homepage
      It's a pretty darn easy song

      Indeed. [azchords.com] For those of you more familiar with Guitar Hero than sheet music or guitar tabs, this song basically goes like this: green, pause, green, pause, green, red, red, pause, red, yellow, repeat. Except it's really that easy IN REAL LIFE.
      • For me, at least, a lot of the songs in Guitar Hero are easier in real life than in Guitar Hero!
      • by Kamineko (851857)
        Gene sample accepted and cloned. Transmogrification in progress.
      • by slim (1652)

        It's a pretty darn easy song

        For those of you more familiar with Guitar Hero than sheet music or guitar tabs, this song basically goes like this: green, pause, green, pause, green, red, red, pause, red, yellow, repeat. Except it's really that easy IN REAL LIFE.

        Except because it has a moderately confusing rhythm which varies as the song progresses, and quite a high tempo, by the time you get to Advanced level in GH, it's a bloody difficult song... and in the recording, it's not purely strumming out the standard chord shapes -- there are subtleties to the transitions between chords.

        Yeah, it's not Yngwie Malmsteen, but it's not Crass either.

    • by AdamTrace (255409)
      Simple? It actually, it took me quite a while to 5-star that song on Expert, and I consider myself an above-average GH player...

      Those three-finger chord changes were a bitch! :)
  • by TibbonZero (571809) <.Tibbon. .at. .gmail.com.> on Thursday November 22, 2007 @08:54PM (#21450361) Homepage Journal
    Have they been living under a rock? Everyone knows what Guitar Hero is! I've never heard of someone doing a cover song, "Too close" without sampling being sued like this.
    If Activision or Harmonix came to me and was like, "Hey, we are going to do a cover of your song for GH/RB" I'd have a pretty damn good idea of what they are doing. It's not going to be a Salsa cover of a rock song, but a pretty damn close cover with at best some parts adapted to fit the game better!

    Really, i mean what did they expect?
    morons.
    • by Ipkat (1193023) on Thursday November 22, 2007 @09:08PM (#21450447)
      Actually, the copyright to the song (i.e., the score) and the copyright to their recording of it are two separate things. It's likely they just didn't own the copyright in the score, and whoever did happily licensed it away to Activision. This reminds me of the strange case of Tom Waits v. Frito Lay, in which old Tom was awarded $6 million for "misappropriation of personality" after Frito Lay hired a Waits impersonator to sing in a commercial. You Americans and your crazy IP laws!
      • by TheLink (130905)
        'Tom was awarded $6 million for "misappropriation of personality"'

        Yeah, one morning he woke up to find his personality gone and that's why he sued.

        Maybe this band sued because the cover version was better than they'll ever be able to do, and they just couldn't accept that.
      • Re: (Score:3, Insightful)

        by Enoxice (993945)
        What you didn't mention is that Tom had previously declined their offer to use a song of his ("Step Right Up", off of Small Change, for those that care). Frito-Lay turned around and hired an impersonator to sing a jingle similar to the song.

        The difference here is that they had permission from the band to make a cover, they made a cover, and now the band is pissed for no legally-justifiable reason. Also, Tom Waits is 10 million times as awesome as The Romantics.
  • by eebra82 (907996) on Thursday November 22, 2007 @08:58PM (#21450395) Homepage

    The band's attorneys have indicated that they are seeking an injunction that would force the game to be withdrawn from sale.
    If true, what on earth could have triggered them to ask their lawyers for such a ridiculous action? Clearly, no one is a winner if "the Romantics" win over Activision in court:

    - Activision will lose a lot of cash on all the disks that must be reprinted.
    - Fans of the title will be furious if they have to wait for weeks.
    - The band will be perceived as greedy and ignorant to their own fans who wait for this title with great anticipation.

    If anything, they should ask Activision for money. Maybe I am ignorant or just unaware of some fundamentals here, but at least if I was an artist, I would have allowed this. Maybe I'd had been bothered but I would certainly try not to make an ass out of myself in front of my fans.
    • by compro01 (777531) on Thursday November 22, 2007 @09:07PM (#21450443)
      If true, what on earth could have triggered them to ask their lawyers for such a ridiculous action? Clearly, no one is a winner if "the Romantics" win over Activision in court:

      presumabley they're trying the "sue for the world, settle out of court for what they really want" tactic.

      either that or they're certifiably nuts, which is always a distinct possibility.
      • Or maybe it's all just for publicity.
      • Romantics History (Score:5, Interesting)

        by bmo (77928) on Thursday November 22, 2007 @09:48PM (#21450665)
        "presumabley they're trying the "sue for the world, settle out of court for what they really want" tactic."

        It's not that. It's "We never got a dime for this shit when it was popular, but now that we have our own stuff back, we'd like to have our contracts followed, thanks"

        They got screwed over by Joel Zuckerman and Arnie Tencer and never saw a dime for "What I like about you" when it was popular. All those Molson and Budweiser commercials? Nothing. Zero, zilch. They had to tour for _7 years_ to finance the lawsuit to recoup _something_, and they eventually won judgments but were unable to collect because Zuckerman and Tencer didn't have any visible assets.

        The only important thing they got back was control of the original copyrights, many years after being popular.

        Given the history of The Romantics, I'm not surprised they're trying to stick up for themselves.

        A history lesson:

        http://www.metrotimes.com/editorial/story.asp?id=5363 [metrotimes.com]

        --
        BMO
        • by imsabbel (611519)
          Well, maybe they should have used that 7 years earnings to finance a nice life, and not fuel the engines of lawyers...
        • by p0tat03 (985078) on Friday November 23, 2007 @12:03AM (#21451281)
          A sad story to be sure, but that doesn't justify them suing someone who is, for all intents and purposes, an innocent party. There are no laws against covering a song - so long as you pay the right royalties to the right places (which I am *sure* Activision isn't dumb enough to forego). If they're not seeing a penny of that, pursue the parties responsible for THAT...
    • Re: (Score:3, Funny)

      A withdrawal might ensure that the next edition has some new loading screens:

      "Any percieved similarity to the original song is unintended. Rock out!"
      "If you complete this song on Expert, it may be considered a threat to the original band's income!"
      "Dear The Romantics, remember when it used to be about the music?"
      "If your only fans are the RIAA, then go back to the nursing home."

    • Obviously the idea that they could make a quick buck is their motivation for suing. When was the last time you heard of them releasing a new hit moneymaker? The members of the band have clearly been convinced that they can make more money by suing than by writing new material. Such is the state of this industry. (Note: Since it sounds like I'm being contentious, I have to point out that I agree with you where it counts)
    • by Tuoqui (1091447)
      I doubt they have any fans anymore. Which is why they can be such jerks about this.
  • by mille666 (798904)
    ...Imitation was the highest form of flattery. Ohwell, times change.
  • by Derling Whirvish (636322) on Thursday November 22, 2007 @09:27PM (#21450545) Journal
    BTW, when I was a kid and compilations of hits by cover groups was common (sorta like "Kidz Bop" now is) rarely would compilations of the original songs be offered on TV due to the high costs of getting the licenses. But I remember one TV offer in particular that was a group of recent hits and the name of the cover group was "The Original Artists." The come-on was something like: "20 of 19xx's greatest hits all by 'The Original Artists." I still LOL over the marketing slimeball that came up with that one.
    • That's like that band One Night Only getting all those amazing gigs everywhere...
    • by Vskye (9079)
      Dude, I was burned on this one when I was a kid. Seen the ad on the TV and sent them like $19.95 (or whatever) and got a LP that was more flexible than a porn star. PLUS, it was a damn band called the "The Original Artists".. considering I was like 13 at the time, that sucked. Lesson learned.
  • Done to death (Score:2, Informative)

    by DeathElk (883654)
    Here in Australia, one of the major commercial stations used this song as their station promo for... what seemed like an eternity. I don't really care if I never hear it again!
  • by starglider29a (719559) on Thursday November 22, 2007 @09:32PM (#21450579)
    Let's all boycott buying Romantics albums!!!

    That'll show 'em!
  • by WhiskeyJuvenile (534710) on Thursday November 22, 2007 @09:33PM (#21450591) Homepage
    A cover -has- to sound like the original in order to qualify under the compulsory licensing scheme in America. If the cover reworks the original, it's not a cover but a derivative work, and is infringing.
    • Re: (Score:3, Insightful)

      by webmaestro (323340)
      Actually, under 17 USC Sec. 115(a)(2) - "A compulsory license includes the privilege of making a musical arrangement of the work to the extent necessary to conform it to the style or manner of interpretation of the performance involved..." As long as you keep the melody pretty much the same you could make a rap version of a country song for all the copyright law cares. It's true that it would be considered a derivative if it modifies it extensively, and would therefore not be eligible for compulsory licensi
    • by Torodung (31985)
      Interesting. I wonder what would have happened had Bob Dylan gone after Jimi Hendrix's cover of "All Along the Watchtower?" Would Jimi have had to pull his far superior interpretation off the shelves? Would Dylan have had to have Jimi's permission to perform it the way Jimi did it?

      BTW, I think you're mistaken in your concept of derivative works as pertains to music. I don't believe that covers things like tempo and style. You have to be significantly different to produce a derivative work. What is significa
  • by edwardpickman (965122) on Thursday November 22, 2007 @09:38PM (#21450617)
    The point is the game company should have a reasonable expectation that what they were doing was legitimate. Withdrawing the product is an unreasonable action and grossly harms the game company when there is a serious question that they did anything wrong in the first place. Lots of covers of songs sound just like dumbed down versions of the original. The only way they might have a case is if there was a reasonable expectation of confusion and the game company was selling the cover version as a single or part of an album. There's no damages in this case since the record company owns the song and licensed it for use. Go to Las Vegas, there's a bunch of lookalikes doing covers every night of songs and they even dress like the stars to "Create" confusion with the original artist. If they advertised the game as including the Romantics song that could also be grounds since they are using the band's name to help sell games but I take it that isn't the problem. Basically the band got screwed out of money because the record company owns their songs not them. That's the issue not a game company ripping them off.
  • Isn't it obvious that the band is just attempting to squeeze money out of the makers of guitar hero?

    I guess if you can't get rich, you can sue someone who is.
  • by DreadfulGrape (398188) on Thursday November 22, 2007 @09:52PM (#21450683)
    more cowbell!
  • by Eccles (932) on Thursday November 22, 2007 @10:07PM (#21450753) Journal
    The band's attorneys have indicated that they are seeking an injunction that would force the game to be withdrawn from sale.

    I've been trying to buy the Wii version for the kids; as far as I can tell, they've succeeded.
    • by DeathElk (883654)
      Lucky us in Australia, I picked up GHIII for Wii two weeks ago, introductory special at BigW (== oz walmart?), for AUD$98 (about US$85), rrp AUD$159.95. "Have fun" said the checkout lady. I did.
  • Decide for yourself (Score:5, Informative)

    by garett_spencley (193892) on Thursday November 22, 2007 @10:35PM (#21450899) Journal
    I found these clips on Youtube:

    The Original [youtube.com]
    Guitar Hero Version [youtube.com]
    • by Firethorn (177587) on Thursday November 22, 2007 @11:40PM (#21451175) Homepage Journal
      Having listened to both versions, besides seeming to have different mixing ratios (guitar was realllly emphasized in hero), I find myself having to ask: What do they need for it to not count as 'too close'? I mean - I'll admit that the main singer in hero was close, but I can tell the differences in side by side.

      Having watched some of those karaoke and band shows on the tube* today, I know that there are people who can get scarily close when they imitate some popular bands.

      I have no problems believing that a good cover band, selected somewhat selectively to imitate a popular song, being fully capable of 'scary imitation'. IE what else were they expecting? Their number turned into a rap song? For the cover band to suck, for a major production?

      A cover band was probably needed as suitably separated/isolated recordings didn't exist for the song, and the band is no longer capable of playing it to their old level. We are talking about an '80s band here, and not one that's kept up either.

      *Weird thought: How long until people won't know what that means?
      • And if they did a bad cover then they could have sued for 'defamation of character' or some other such nonsense.
        i.e. they'd probably have claimed that guitar hero was making them look bad if a poor cover was done. Either way they try and make money even though they previously agreed rights.

        Those who can do, those who can't sue.
        • This is basically what I said in my first post on this thread. ;)

          The band agreed to a price to get their song in the game. Now they're looking for more money, filing a lawsuit for no good reason.

          The injunction against selling is part of the tipoff - that's to cost the company money as punishment. (It would have been cheaper to settle before we did this!).

          Still by the Danegeld theory, it's cheaper to fight the occasional fight like this, because if you just pay, you never get rid of the Dane(them, and othe
  • If I were The Romantics, I would be flattered and take it as a complement that people are still willfully listening to my music... let-alone featuring it in a very popular game.
  • This is what is so crazy about "intellectual property". Every one of the songs in Guitar Hero is grounds for a potential winning lawsuit. It is extremely difficult to round up all the permissions necessary to put together something like Guitar Hero. The Beatles did it for the cover of Sgt. Pepper, and it was a lot of time and work. Don't know who else has tried something like that. Maybe no one. I expect a whole lot of people wish they could have. Wonder how different art would be if not for this sor

  • by zuki (845560) on Thursday November 22, 2007 @11:14PM (#21451059) Journal
    After over 30 years working in publishing and recording, I must confess that I had never, ever heard of such a frivolous assertion.

    This is one of the most bizarre, convoluted claims one could imagine, as there clearly is no law preventing people from sticking close
    to a song's original arrangement and sounds in a cover version, and arguably no way to prove, or no standards ever established to
    define where things could be 'too close for comfort', or what would in turn constitute enough of a difference to be safe.

    Matters here are not a case of impersonation, it's more just a bunch of musos with solid chops playing well, and 'nailing it' in the studio.

    Also, isn't the whole Karaoke [wikipedia.org] business built on recording cover versions that stick so close to the original as to make them indistinguishable?

    In theory, - if I were the game's publisher -, I would go to trial on this, as there is no legal set precedent that I have ever heard of.
    However, before rushing to do so, there are two interesting bits to consider here, both gleaned from reading the excellent article linked on the band's history:
    • This band is one of the rare winners of any lawsuit to regain ownership of their own compositions, and may feel emboldened by this fact.
    • They managed to retain the services of a top-flight lawyer who didn't seem to flinch at the idea of taking up a long and drawn-out uphill battle on contingency.
    So as far as the band, thinking that they've already won once in court, they may decide to stick it out, truly thinking that they'll do so again.
    From a legal perspective, if this went to trial, and some moronic jury actually awarded hem damages, think of the chilling effect such
    a precedent would have on the whole 'cover version' process, and incidentally to this game publisher's gravy train franchise.

    What's to then stop another aging rock star to show up at one of your gigs as a cover band, and sue you claiming that you're too close to their original?

    So perhaps, there's a pragmatic legal counsel at the game publisher's headquarters that will make the suggestion that it might be better to shut them up
    (by offering them a sealed out-of-court settlement for a few millions, out of the $115,000,000.00 they recently made in the first seven days their newest
    game was offered for sale
    !) than risk turning the whole 'cover version' business upside down, which could cost them and everyone else heaps more,
    and might well become one of the worst legal precedents ever set.

    After thinking back on all of these ideas, the band's strategy might not be anywhere as bad as what any layperson thinks.

    Rather than to risk setting the precedent, the game's publisher may just push to settle this one quickly for undisclosed terms out of the public's eye....
    If they don't, all of this could hinge on 10 morons serving jury duty, and who will vindicate the band by just trying to quickly have the trial over
    with, and get back to their normal lives rather than agonizing in court for what could turn out to be weeks of boring deliberations.

    Oh, yeah!... IANAL, and all of the other disclaimers too.

    Z.
    • by shark72 (702619)

      "I would go to trial on this, as there is no legal set precedent that I have ever heard of."

      Good thing you're not their counsel, then. In Midler v. Ford Motor Company, the 9th circuit court held:

      "When a distinctive voice of a professional singer is widely known and deliberately imitated in order to sell a product, the sellers have appropriated what is not theirs and have committed a tort in California."

      Ford had tried the same shenanigans that Activision is apparently doing: they didn't want to pay to

      • I think that (in my mind at least) there is a VAST difference between having ONE piece of music and selling a product with it,
        therefore making it the centerpiece of the presentation, as in Bette Midler's case.

        Ford had tried the same shenanigans that Activision is apparently doing: they didn't want to pay to use Bette Midler's original recording,
        so they hired one of her background singers to create an exact sound-alike, in an effort to confuse listeners.

        In this case, gamers are playing along somethin

      • by SEE (7681)
        The question becomes, then, is Activision actually "making a recording that is designed to fool people into thinking it's somebody else", or did they just want a cover and it happens that the cover artists did a (perhaps too-) good job?

        In the cases of both Ford and Frito-Lay, there was an obvious effort to associate the singer with the product by using their song and a sound-alike, to create the impression that the singer was voluntarily associated with the product advertised. Confusing listeners was clear
    • Rather than to risk setting the precedent, the game's publisher may just push to settle this one quickly for undisclosed terms out of the public's eye.... If they don't, all of this could hinge on 10 morons serving jury duty, and who will vindicate the band by just trying to quickly have the trial over with, and get back to their normal lives rather than agonizing in court for what could turn out to be weeks of boring deliberations.

      As an American who has twice served on juries (most recently was 2 years a
  • WTF is a "cover version" SUPPOSED to sound like? As long as they got appropriate permisiions under contract, Activision shouldn't be subjected this crap.

    If this crap was in effect in the 1950's and 1960's, Chubby Checker would never have gotten anywhere with his cover of a Hank Ballard and the Midnighters B-side called "The Twist". I'm an oldies afficianado, and I have a hard time telling the two records apart. The average person could listen to the two versions, and not know which was which.
  • by Khyber (864651) <techkitsune@gmail.com> on Friday November 23, 2007 @11:08AM (#21454309) Homepage Journal
    The moment I heard the horrible covers of songs like Symphony of Destruction and Laid to Rest, I went and returned the game.

    Seriously, listening to a song that awesome that has become that badly mangled (not to mention I have those songs memorized and can play them on a real guitar) by a cover band immediately turned me off to the game. Why couldn't the game studios just ask for access to the original multitrack parts? Seriously, any studio worth it's salt should have separate tracks for a mixdown, from vocals to drums to guitars. Would it have been that hard to get the music as it was originally written, instead of a mangled cover-band version?

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