Gutiar Hero Opinion

The District Judge in the Romantics v. Guitar Hero suit has issued her opinion, The Romantics v. Activision Publishing, Inc., 2008 WL 186370 (E.D. Mich. Jan. 22, 2008). Relevant excerpts are reproduced below. On the right of publicity claim, the judge notes that Michigan has not recognized a right of publicity claim in ones’s voice (as compared to image), and further relied on the argument I made in the earlier posting that the claim even if it existed would be preempted by 17 USC §114(b). There is also discussion of a First Amendment defense.

NANCY G. EDMUNDS, District Judge.
On November 20, 2007, Plaintiffs filed a motion seeking a preliminary injunction enjoining Defendants, during the pendency of this action, from advertising, offering for sale, selling, distributing or otherwise making or selling the video game “Guitar Hero Encore: Rock's the 80s” (the “Game”), or otherwise using the identities, persona, or allegedly distinctive sound of Plaintiffs in connection with the Game. On December 18, 2007, the Court heard argument on Plaintiffs' motion.

Having given due consideration to the parties' written and oral arguments, the Court hereby DENIES the motion in its entirety.


I. Facts

A. The Defendants and the Game
The Game is a part of the “Guitar Hero” video game franchise which includes a series of games, guitar shaped game controllers, accessories and merchandise under the “Guitar Hero” trademark. This franchise has been very successful, winning numerous accolades and becoming the top selling franchise for console video games as of September 2007.

The Game is a complex artistic work combining visual, audio and narrative elements for which Defendants spent months developing the unique theme and technology. The Game allows players to pretend they are playing guitar in a rock and roll band. Play begins as players choose among options such as character, costume, and model of guitar, and then simulate the guitar play of various songs by correctly timing the pressing of fret buttons and strum bars on a guitar-like controller. The Game includes thirty songs from the 1980s to add to the realistic experience of playing in a rock band from that era. Each song in the Game has a level of difficulty, and only after reaching a certain proficiency on a song can a player advance to another more difficult song. The graphic video elements of the Game require complex synchronization with each song to enable the realistic simulation of guitar play.

Defendant Activision Publishing, Inc. (“Activision”), the distributor of the Game and the parent of Defendant RedOctane, Inc., the publisher of the Game, obtained a valid nonexclusive synchronization license from EMI Entertainment World, Inc., the owner of the copyright in the musical composition entitled “What I Like About You” (written and originally recorded in 1979 by the band, The Romantics, and published in 1980) (the “Song”). A synch license, in the context of a video game, permits Defendants to make a new recording of the underlying composition and to use that recording in synchronization with visual images in the video game to enable game play. In accordance with this license, Defendant WaveGroup Sound (“WaveGroup”) recorded a new version of the Song which was incorporated, or synchronized, into the Game. The Game was commercially released in July 2007.

While playing the Game, a player can encounter the Song or any reference to The Romantics only if the player obtains an advanced player status. Theoretically, a player could play the Game and never reach the advanced level of play necessary to encounter the Song among the thirty tracks included in the Game. Even when a player encounters the Song, it is part of the content in the Game, and is clearly identified by the Song title and the words “as made famous by the Romantics,” thus informing players and onlookers that The Romantics are not actually performing the Song. Defendants have never used the Song for the purpose of advertising or marketing the Game, and neither the name of Plaintiffs' band nor any of the names of the individual Plaintiffs appear on the product packaging.

…

B. The Plaintiffs and The Song
Plaintiffs Wally Palmar, Mike Skill, and Coz Canler are current members of the rock band The Romantics. The Romantics created the original master recording embodying the Song in 1979, which was released in 1980. Not all Plaintiffs participated in the master recording of the Song and the lead singer on the master recording of the Song is no longer with The Romantics, nor is he a party to this action. Plaintiffs do not allege that they currently own any rights in the Song.

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1. Right of Publicity Claim
2.
Plaintiffs have not made the requisite showing that there is a likelihood of success on the merits for their state law claim of a violation of the right of publicity. Under the circumstances of this case, this claim would be governed by Michigan law. However, Michigan has never recognized right of publicity in the sound of a voice, even if distinctive, nor has it recognized a right of publicity for a combination of voices, and thus Plaintiffs fail to state a cognizable claim for violation of the right of publicity. Moreover, as indicated above, not all of the Plaintiffs performed on the original master recording of the Song, and the lead featured singer on the original master recording of the Song is not even a Plaintiff. Accordingly, there be substantial issues concerning Plaintiffs' standing to assert such a claim even if one were to exist.

Moreover, the First Amendment protects commercial actors' use of a song in a work where such use is related to the content of the work and is not a disguised commercial advertisement for the misleading sale of the commercial actors' goods or services. Parks v. LaFace Records, 329 F.3d 437, 461 (6th Cir.2003). Here, the Game is an expressive artistic work entitled to First Amendment protection because the Game contains significant transformative elements and is not likely to interfere with the economic interest protected by the right of publicity, even if such a right applies to a “distinctive sound” and if Plaintiffs had made a showing that their sound is unique or distinctive such that it has a specific value.

Also, the Copyright Act pre-empts Plaintiffs' purported state law right of publicity claim. A state law cause of action is preempted by the federal Copyright Act if: (1) the work involved falls within the “subject matter” of the Copyright Act; and (2) the rights that a plaintiff asserts under state law are “rights that are equivalent” to those protected by the Copyright Act. Kodadek v. MTV Networks, Inc. 152 F.3d 1209, 1212 (9th Cir.1998). Here, Plaintiffs' “identity” claims to the sound of the Song are essentially claims regarding the licensing of a copyrighted work, falling squarely within the “subject matter” of the Copyright Act. Moreover, Plaintiffs' right of publicity claim, as pleaded, arises from Defendants' arrangement and production of musical and vocal performances that allegedly sound similar to those embodied and reflected in a copyrighted sound recording released by The Romantics in 1980, as distinct from the sound of any individual's voice or musical performance existing separate and apart from a copyrighted work. Thus, the rights asserted by Plaintiffs are “rights equivalent” to those protected by the Copyright Act under Michigan law. Wrench LLC v. Taco Bell Inc., 256 F.3d 446, 455 (6th Cir.2001) (“Equivalency exists if [the state law right] may be abridged by an act which in and of itself would infringe one of the exclusive rights [granted by the Copyright Act]”); Sinatra v. Goodyear Tire & Rubber Co., 435 F.2d 711, 716 (9th Cir.1970) (rejecting plaintiff's right of publicity claim based on her purportedly unique sound in performing copyrighted song).

In addition, sections 106 and 114(b) of the Copyright Act permit the owner of a copyright in a musical composition to license others to make specified commercial uses of the composition. This expressly allows third parties such as Defendants to make a sound-alike recording of a song. Further, the Copyright Act, 17 U.S .C. § 114(b), expressly disallows any recourse for such sound-alike recordings of a song.

As Defendants possess a valid synchronization license, they have the right to make their own recording of the Song to integrate into the Game without violating Plaintiffs' right of publicity.