Guitar Hero Maker Sued - Cover Song Too Awesome 190
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 'The band's attorneys have indicated that they are seeking an injunction that would force the game to be withdrawn from sale.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.
Of course they did... (Score:5, Funny)
Re:Of course they did... (Score:4, Funny)
Re:Of course they did... (Score:5, Funny)
"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)
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)
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.
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Van Morrison in '64? Geez! How could this Belfast leprechaun do that?
Re:3-chord covers (Score:5, Insightful)
"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?
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Re:3-chord covers (Score:5, Informative)
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.
Re:3-chord covers (Score:4, Funny)
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.
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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)
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:3-chord covers (Score:4, Informative)
With GH II and GH III, you can discern a cover from the original artist by the title
Covers are refered to, As Made Famous By and I believe original recordings simply state the band.
Dunno, might save them in court, but it really isn't up to me to decide.
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The Kinks oughta sue themselves for plagiarism. "Paranoia" is essentially the same song as "All Day and All of the Night." :)
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Wow, just wow. (Score:4, Funny)
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Re:Wow, just wow. (Score:5, Informative)
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Re:Wow, just wow. (Score:5, Funny)
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!
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Too simple a song perhaps? (Score:5, Interesting)
Re:Too simple a song perhaps? (Score:5, Insightful)
Oh. Right. In that case...
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I remember a news story a couple of years ago where John Fogerty got sued for sounding too much like John Fogerty.
Re:Too simple a song perhaps? (Score:5, Informative)
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...
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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
Re:Too simple a song perhaps? (Score:5, Interesting)
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.
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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
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Lawyers fees. No matter what, you need a lawyer to at least initiate the paperwork, arrange the settlement, etc... There are a few sharks out there, including a rather famous lawyer who apparently had either a love affair with his pants or a real hatred of a certain immigrant dry cleaners. Though I think he was truly insane, rather than looking for an easy buck.
Anyways - you have to look at it from a risk/profit angle. A company that figh
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"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
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Sorry, another reply to the same post. This is from the Detroit Free Press writeup:
What do you make of the band members' claim that they get record-label royalty checks, when (as you wrote it) "we all know"
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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
Re:Too simple a song perhaps? (Score:5, Informative)
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.
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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.
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Those three-finger chord changes were a bitch!
WTF did they expect? (Score:5, Insightful)
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.
Re:WTF did they expect? (Score:5, Interesting)
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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.
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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.
And John Fogherty! (Score:2)
And less auspiciously: the same was claimed of Nickleback [npr.org]...
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I don't know about that. They did do a metal cover of The Devil Went Down to Georgia for the GH3 finale :).
Unless I'm remembering something that never happened that metal version's been around for a while, I'm pretty sure I heard it on the radio more than once. It's not a particularly good song (and I like metal, and The Devil Went Down to Georgia) but I don't think GHIII made it up.
'Course I don't have the game so it could be a different metal version, but I'm pretty sure I've heard a version of that song that could be considered metal on the radio before.
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In response to the OP, even if The Romantics didn't know what Guitar
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If true, poor move by the band (Score:5, Insightful)
- 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.
Re:If true, poor move by the band (Score:5, Insightful)
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.
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Romantics History (Score:5, Interesting)
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
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Re:Romantics History (Score:4, Insightful)
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"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."
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Last time I checked... (Score:2, Insightful)
Re:Last time I checked... (Score:4, Funny)
Songs by "The Original Artists" (Score:5, Funny)
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Done to death (Score:2, Informative)
Slashdotters unite! (Score:5, Funny)
That'll show 'em!
Heh (Score:2)
Covers vs. derivative works (Score:5, Informative)
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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
No way should it be pulled (Score:5, Interesting)
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Throw the case out (Score:2)
I guess if you can't get rich, you can sue someone who is.
If only Activision had used... (Score:5, Funny)
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It went Wii, Wii, Wii (Score:5, Funny)
I've been trying to buy the Wii version for the kids; as far as I can tell, they've succeeded.
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Decide for yourself (Score:5, Informative)
The Original [youtube.com]
Guitar Hero Version [youtube.com]
Re:Decide for yourself (Score:4, Interesting)
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?
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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.
80s band looking for more money... (Score:2)
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
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lolz (Score:2)
IP law insanity (Score:2)
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
This I cannot believe - very murky business! (Score:4, Informative)
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.
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"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:
Ford had tried the same shenanigans that Activision is apparently doing: they didn't want to pay to
Identity theft - music stylee (Score:2)
therefore making it the centerpiece of the presentation, as in Bette Midler's case.
In this case, gamers are playing along somethin
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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
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As an American who has twice served on juries (most recently was 2 years a
Greedy lawyers and clients (Score:2)
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.
But that's why Guitar Hero sucks to begin with (Score:3, Interesting)
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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"What I Like About You", the 'hit' song in debate reached #48 in the US.
"Talking In Your Sleep" reached #3.
"One In A Million" reached #37.
Not one hit wonders.
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Imagine how many people don't know of any songs by Devo OTHER than "Whip it". Yes, kids have to be told that it is Devo singing on that Dell laptop commercial. Sad, really.
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