My first video game system was Colecovision. About the same time my brother and I were playing “Donkey Kong” and “Frogger,” the Romantics were singing “What I Like About You.”
One of the most popular game lines today is the “Guitar Hero” series. People enjoy rocking out to classics like Cheap Trick or AC/DC. You can find these games at parties during legal technology conferences and see e-discovery professionals proving how fun it is to rock out.
However, a few of the Romantics were not happy with “Guitar Hero.”
Several of the band members sued over “Guitar Hero Encore: Rock’s the 80’s” claiming violation of their “right of publicity; false endorsement under the Lanham Act; unfair competition; and unjust enrichment.” Romantics v. Activision Publ’g, Inc., 574 F. Supp. 2d 758 ( E.D. Mich., 2008 ).
This case ranged from the right of publicity to the First Amendment protecting video games to IP claims. All of the evidence centered on the electronically stored information of a video game system. A Federal Court spent extensive time discussing how “Guitar Hero Encore: Rock’s the 80’s” works, what players do in character creation and how they advance in the game, all to examine dueling summary judgment motions.
The main thrust of the Plaintiffs’ complaint was that people who play the video game will be “confused, deceived, or mistaken” about whether the Romantics endorsed “Guitar Hero Encore: Rock’s the 80’s.” Romantics, 5.
Ironically, the original lead singer was not part of the lawsuit. Moreover, the band members who brought the lawsuit did not claim they owned any right to the “What I Like About You.” Romantics, 5.
The Defendants obtained a valid nonexclusive synchronization license from EMI Entertainment World, Inc., which owned the copyright for the song “What I Like About You.” This license allowed the Defendants to make a new recording of the song and use that recording in synch with the video game. Romantics., 4. If someone advanced far enough in the game they could encounter the new recording of “What I Like About You” with the tag line, “as made famous by The Romantics.” Romantics,10.
The “right to publicity” claim failed. The Court held Michigan law did not allow a “claim based on the sound of a voice, let alone the allegedly distinctive sound of a combination of voices.” Romantics, 9-10. Moreover, it is hard to argue a band has a “distinctive” sound when the original lead singer is not a party in the lawsuit.
The Court stated that if even the “right to publicity” claim survived, it would be trumped by the First Amendment. Romantics, 13. First, the Court found that the video game was an “expressive work.” The Court outlined how the game works, from character creation, playing concerts, and numerous other elements of the story. Second, the song was not wholly unrelated to the video game. The purpose of the game is to play rock songs. However, the Romantics’ song did not appear in any advertising for the game and someone playing the game might never reach the level where they can play “What I Like About You.” As such, the video game was protected by the First Amendment, because it was not “a disguised commercial advertisement.” Romantics, 13-17.
Electronically stored information touches almost all aspects of everyday life, including how we play. This one lawsuit focused on many complex issues from a video game. As the “net generation” continues to grow up and ESI litigation expands, we will see more creative cases involving electronically stored information.
So, as Gene Simmons said, “God Gave Rock and Roll to You.” Happy playing everyone.