A district judge in Michigan denied the Romantic’s motion for a preliminary injunction against Activision, the makers of the popular game. I did a blog on the suit earlier (here). There is no written opinion yet, and apparently won’t be until next month, but here is a boiling down of what went down from “a source close to the case.”
The defendants argued that a band's sound is not protected under the "right of publicity" doctrine, and following the argument I made in my prior blog, that such a claim would, in any event, be preempted by 17 USC 114(b). This view is greatly strengthened by a statement from a band member that the band was complaining about copying of their sound from a particular recording. Defendants also argued that videogames are worthy of First Amendment protection (an argument the judge is reported to have been sympathetic to), and on the trademark count that the reference to the Romantics name was a non-infringing nominative use, adding that plaintiffs had not introduced evidence of any consumer confusion about sponsorship or endorsement, but rather argument that the recording in the game is of the band or a sound-alike.
It didn’t help matter that plaintiff’s counsel is reported by this source to have stated publicly that this was essentially "all about money." The Judge' is said to have been of the opinion that enjoining sales of Guitar Hero on the eve of the holiday would potentially be ruinous to the defendants. Interestingly, the judge precluded plaintiff’s efforts to introduce live testimony from at least 8 witnesses, ruling that the issues were legal, not factual. Here is a link to an article from the Detroit Free Press about the judge's ruling.