A suit just filed in Detroit by the Romantics against Activision Inc. for including their 1980 song What I Like About You" in the video game "Guitar Hero" raises an interesting preemption question. Section 114(b) reads in relevant part:
The exclusive rights of the owner of copyright in a sound recording under clauses (1) and (2) of section 106 do not extend to the making or duplication of another sound recording that consists entirely of an independent fixation of other sounds, even though such sounds imitate or simulate those in the copyrighted sound recording.
This section permits -- encourages -- the making of sound alikes. For example, in the sound track to the movie Easy Rider, the Band would not permit use of their song The Weight, so the label hired Smith to copy The Band's performance as closely as possible. No cause of action was available for this, the mechanical royalties having been paid. In the Activision case, a sync license was obtained for reproduction of the song. The Romantics claim however that the sound alike violates their right of publicity in the sense of imitating the sound of their voices. Without knowing the facts of the case, and just as a matter of general law, it seems such a claim is preempted since it is based on the very acts that Section 114(b) permits.