Romantics object to cover song sounding like original

Stephen says: "This USA Today article outlines a lawsuit filed by The Romantics who authorized a cover version of their song What I like About You. The problem is the cover version sounds exactly like the original. By recording a "cover" version means that Activision can avoid paying full royalties to the band because they are not using the original recording."

"It's a very good imitation, and that's our objection," said Troy attorney William Horton. "Even the guys in the band said, 'Wow, that's not us, but it sure sounds like us.'"

Horton said Activision should have secured a master license for the Romantics' original 1980 recording, then paid appropriate royalties. He said the band became aware of the issue when fans said they'd heard the song in the game but members saw no accounting for it on their record-label royalty checks.

"I was very upset because the band had worked very hard over many years to develop and use its distinctive sound," the Romantics' Wally Palmer said in an affidavit.

Link

• [Nick D]

  “It seems unlikely that the reason for using a cover is to avoid paying royalties.”

  Full royalties, you mean. If I’m not mistaken, you have to pay to do a cover, too. You just pay less. But isn’t that a financial incentive?

  Plus, it’s an original recording, that you can do with as you like (in some respects) without seeking permission. That’s benefit #2. (Please correct me, anyone, if I’ve got my facts wrong. I’m certainly not an expert.)

  “Seems like an odd and not-entirely-desirable outcome if cover bands are effectively required to not sound ‘too much’ like the original, whatever that means.”

  It sounds like a desirable outcome to me. It’s called “originality.” Also known as “bringing something new to the table.”

  @#3: in your journalism days, were you as hate-filled as you’re coming off here? And I’m assuming you’re joking when you imply that only good artists (in your infallible opinion) should be treated fairly. Good one!

• [jerkzilla]

  As I am not versed in “the law”, I appreciate all of the legal research some of you have done, but I think the point is being missed. In the Guitar Hero games, your character is performing several different songs, some of which are the originals and some aren’t. But all of the songs are supposed to sound like the originals, effectively creating the fantasy that you are the guitarist for the specific band that created the song. Who wants to play a song that’s specificly liscened for the game that doesn’t sound anything like the original? It doesn’t make sene. I highly doubt that The Romantics weren’t made aware of the concept of the game before they signed the release forms. In all of the Guitar Hero and Rock Band games the disctinction is always made between a cover and the original. When the title of the song is displayed on screen it will say “As made famous by…” if the song is a cover. Anyone who plays can make this distinction, so I have no idea why The Romantics think they have a leg to stand on. I do think that this case is completely different than cases where a corporation goes and apes another artist’s style for a commercial. The musicians and song writers whose songs appear in Guitar Hero are being paid specificly for the style of their songs that are in the game. Their style is integral to the gameplay itself. If you remove the fantasy that you (the gameplayer) are actually in That rock band, why have any recognizable songs at all?

• [CitrusFreak12]

  Fwiw, the two songs do not sound exactly alike, not by a longshot.

• [Nathaniel]

  That’s pretty sad. Activision paid for the right to produce a cover song for the game. They produced said cover song. Band sues.

  Sometimes I hate this world.

• [Teresa Nielsen Hayden / Moderator]

  Here’s the question: if you make a new rendering of someone else’s artwork that cannot easily be distinguished from the original, should the commercial use of this re-rendered version pay a fractional royalty to the original artist on account of being a derivative work, or should the artist be paid a full royalty because the use of the re-rendered version is for all intents and purposes the same as using the original?

  A normal cover is a new version of someone else’s original song. Musically, there’s no point in doing a cover that sounds just like the original. The only point in doing a duplicate version is that it produces a recording that has a different legal status, but is functionally the same as the original.

  Suppose you get one of those singers who can do an uncannily accurate imitation of early Dylan (they exist), instrumentalists who can mimic the harmonica and strummed guitar and cheesy electric organ, and (v. important here) a recording studio that has the same kind of idiosyncratic old equipment used to produce the original. You bring them all together and record a version of “Like a Rolling Stone” that’s so close to Dylan’s own that a casual listener won’t detect the difference, and a more careful listener will think it’s just an alternate recording from the same session.

  You now have a version that derives its value, not from the performance itself, but from its duplication of someone else’s famous and extremely distinctive performance. IIRC, Dylan doesn’t license his work for use in commercials; but this duplicate can be licensed out to sell anything — pantyhose, instant coffee, automobiles, mortgage brokers, shaving cream — and that use will only pay him the fractional royalty that accrues to a songwriter.

  The Romantics may or may not get anywhere with their lawsuit, but it’s not completely unreasonable for musicians to object to a near-duplicate cover of one of their biggest hits.

  Ian70 (10), what happened to John Fogerty was appalling.

  I keep waiting to see whether anyone’s going to lament the ongoing collapse of the recording industry, but so far it’s just not happening.

• [Stef]

  A song typically has two distinct rights: the actual sound recording (the “mechanical” rights) and the composition of the song (the “publishing” rights). These are then sub-divided and distributed appropriately; if you’d like to know how this works in the UK, see this diagram:
  http://www.soundonsound.com/sos/mar03/images/DIY2ExpandedRoyalt.l.gif

  Activision are paying for the publishing rights so they can “cover” it, but not the “mechanical” rights of the original sound recording, so yes, they’re saving a bit of money. But that’s how it works with covers and, quite frankly, this just sounds like sour grapes to me. It could be that the label decided they wanted to charge an extortionate rate for the mechanical rights – typically it’s the labels that own the sound recordings, with the publishing usually kept by the artist or managed by a publishing company on behalf of the artist (who’ll then promote the songs and take a percentage fee, in a vaguely similar way to the exchange between authors and book publishers).

  The previous winning suits all relied on the sound-alike inferring that the original artist could be seen as endorsing the product advertised, which isn’t the case here, as far as I can tell. I think they’ll have a hard time winning as a result.

  There’s an entire industry built around “sample recreation”, where people try to create sounds from scratch that sound identical to the original recordings, when they can’t obtain the rights to the original sample due to the owners refusing to licence, asking for ridiculous amounts of money, etc. For example, C.J. Bolland spent days in the studio trying to recreate Samuel Jackson saying, “it ain’t gonna be me,” as whoever owns Jackie Brown wouldn’t authorise its use, before luckily managing to get Jackson himself to personally approve it. If The Romantics won this lawsuit it be interesting to see how the decision would affect situations like this.

  What’s ironic is that track sales of songs included in Guitar Hero and similar games have increased dramatically, if the following news article is anything to go by:
  http://arstechnica.com/news.ars/post/20071121-your-song-in-guitar-hero-equals-a-big-jump-in-digital-sales.html

  So, if anything, The Romantics should be thanking Activision, not suing them.

• [Michae W. Dean]

  I know copyright enforcement seems really unhip to a lot of folks these days, but copyright is a right guaranteed in the US Constitution. (“…To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries….”)

  I happen to really like the US Constitution, ALL of it, and really hate to see it stepped on. It seems to me that a lot of people these days yell loudly when their rights are violated, but then want to violate the rights of others whenever it feels convenient.

  Do the commenters here who are bemoaning the enforcement of this Romantics issue think the Constitution should be changed?

  And if copyright law should be enforced for one, it should be enforced for all, regardless of perceived artistic merit. (By the way, most of the music I like is really dark: Nick Cave, Leonard Cohen, Tom Waits, Bauhaus, etc, but I think “What I like About You” is a particularly well-crafted pop song, it rocks, and I respect it for that.)

  I know that old-school media companies tend to be WAY overly proactive about going after all perceived “violations”, really selfish about trying to extend copyright law for too long, and often slam Fair Use as illegal use. And I think the Internet has changed the playing field to the point where copyright law needs some reinterpretation.

  People are making inroads. Among them are Creative Commons. I dig Creative Commons and use it on some (not all) of my projects. I also give away some art, and there are millions of people doing that.

  But I also maintain copyright on some projects, for a number of reasons. And I feel strongly that the underlying principals of copyright law are sound, and should be upheld. For all.

  Tom Waits successfully sued Frito Lay when Frito Lay used a “sound alike” singer to record a song SIMILAR to one of Waits’ songs (it wasn’t even one of his own songs) for a commercial.
  http://en.wikipedia.org/wiki/Tom_Waits#Lawsuits

  I’m fine with that, but probably for different reasons that some folks here, who probably are fine with it because Waits is good and the Romantics are “shitty”.

• [Irregular Shed]

  This exact same thing happened to Muse, but it was more complicated than this. Nestlé used a soundalike of their instantly recognisable cover of Nina Simone’s Feeling Good for a coffee advert in the UK. As it stood, they weren’t due for any royalties, having not written the song or performed it – but it was very, very, VERY obviously ‘inspired’ by Muse. In the end they settled with Nestlé out of court, but part of the settlement was a gagging order so they’re not allowed to talk about what scumbags Nestlé are.

  Fortunately most of the world knows what scumbags they are already.

• [Ian70]

  hey #8, your argument is -way- off. This has nothing at all to do with copyright. If they were using the original recording without paying for it that’d be a copyright issue: that didn’t happen. if they were using a ‘cover’ version without paying for the right to use it that’d also be a copyright issue: that didn’t happen either.

  You can’t copyright the way a band sounds. You can’t copyright the way Tom Waits sounds, or Leonard Cohen for that matter.

  Not to mention the fact that the Romantics’ agent said “the band had worked very hard over many years to develop and use its distinctive sound”. That’s utter crap. If their sound was so distinctive then their -other- big hit “Talking In Your Sleep” would sound just like “What I Like About You.” It certainly does not. So much for a “distinctive sound”.

  You know who has a distinctive sound? John Fogerty. You know who once got sued by a record company for sounding exactly like himself? John Fogerty. You know who thinks -that- was a travesty of justice? Everybody except the record company pricks. (thank you, FZ)

• [Michae W. Dean]

  >hey #8, “your argument is -way- off. This has nothing at all to do with copyright.”
  ——

  Yup. I see that now. Not directly.

  It has more to do with “voice protection” which is connected to copyright and usually enforced by the same attorneys. Voice protection is a relatively new concept, and falls somewhere between copyright and trademark.

  After really mulling this over, I’m not sure I feel that the Romantics have a case, since they agreed to allow a cover. Though they will probably get an out-of-court settlement since they’re seeking an injunction to prevent the game from being sold, during the holiday season. Interesting timing, no?

  However, I stand by everything I said about copyright. Feel free to mentally cut and paste it as a response to any comment (here or elsewhere) that feels like “To hell with the fat cats, all copyright is theft, we should be able to do whatever we want.”

  –
  (By the way, if you want to add one more to the list of people who’ve successfully sued under voice protection, in addition to Tom Waits and Bette Midler, you can add Jonathan Richman. He sued Target for using a soundalike recording his song “Ice Cream Man” in a commercial, and I think he was right to do so. But again, this was an unauthorized use, not a case of someone allowing the cover, then being displeased with the outcome.

  (Interestingly, Richman is not incredibly proactive about preventing people from enjoying his songs on the Internet. During an interview, I once asked him “What do you think of people downloading your music on the Internet?” He said “I let others worry about those things. Sounds boring to me, though.”)

  –Michael W. Dean

• [David Bruce Murray]

  This lawsuit should be thrown out of court…

  You don’t need a band’s authorization to record a cover of one of their songs. All you have to pay is mechanical royalties to the publisher of the song.

  That’s the law.

  It doesn’t matter how much it sounds like the original version.

  See: http://www.copyright.gov/title17/92chap1.html#115

• [Michae W. Dean]

  >#12: “You don’t need a band’s authorization to record a cover of one of their songs. All you have to pay is mechanical royalties to the publisher of the song.”

  You need a band’s authorization if you sound so much like the band that people could become confused….that’s the basis of “voice protection”. (This is where I feel this Romantics suit resembles trademark issues more than copyright, though it is neither.)

  #2: The reason this is rarely enforced in bar bands is that individually, bar bands don’t make enough money to be a blip on the music publishers’ accountants’ radar. The “Guitar Hero” game is big business. HUGE business.

  ——
  >#10: “You know who has a distinctive sound? John Fogerty. You know who once got sued by a record company for sounding exactly like himself?”

  Yup. That one was a drag. (Especially after that label had bought CCR’s publishing for 75 bucks, without bothering to explain what publishing is. CCR’s publishing is worth a shitload of cash. (It basically built Fantasy records, and Fantasy Studios).

  An ironic twist on this type of suit was when Geffen sued Neil Young for not sounding ENOUGH like Neil Young.

  (from http://encarta.msn.com/encnet/refpages/RefArticle.aspx?refid=761580492
  ):

  “In 1983, after signing a large contract with Geffen Records, Young unexpectedly released a computer-music album, Trans. With his vocals electronically distorted and synthesizers and other unusual effects incorporated into the recording, the album bombed. Along with a subsequent release in the 1950s style of rockabilly (Everybody’s Rockin’, 1983), the experiment led Geffen Records to file an unprecedented lawsuit against Young. Geffen alleged that Young had violated his contract by recording uncharacteristic music with no chance of commercial success; the lawsuit was subsequently settled. For the remainder of his contract, Young reverted to more mainstream material.”
  —–

• [David Bruce Murray]

  #13
  “You need a band’s authorization if you sound so much like the band that people could become confused….that’s the basis of ‘voice protection.”

  If that were true, every bluegrass band in the world would be in trouble for sounding too much like every other bluegrass band.

  Can you provide a link to this “voice protection” or “voice misappropriation” law as it applies in the USA?

  Regarding the Tom Waits vs. Frito Lay, I think that was a faulty decision. No federal law was broken. The case should never have been heard in a federal court. It didn’t surprise me at all when I read that it was the 9th Circuit Court of Appeals in California that handed down the final decision in the Waits case. The court held that a CALIFORNIA law had been violated in making their decision…not a federal law.

  http://markroesler.com/pdf/caselaw/Waits%20v.%20Frito-Lay%20Inc.%20_1992_.pdf

  As you said, this case between Activision and the Romantics would have to fall outside of both copyright law and trademark law. So, which laws are they claiming were broken?

  Does anyone have a link to the actual filing (which should cite the laws they are claiming were broken)?

• [Michae W. Dean]

  #13: I see your PowerPoint presentation and raise you (Right of publicity – Origins, from University of Connecticut Law School):
  http://www.law.uconn.edu/homes/swilf/ip/power_point/Rts_of_Publicity.ppt
  :

  “Six states now include ‘voice’ as part of the persona protected by right-of-publicity statutes: California, Indiana, Nevada, New York, Oklahoma, and Texas”
  ——
  Tom Waits case is:
  Waits v. Frito-Lay, Inc., 978 F.2d 1093 (9th Cir. 1992)
  ——
  “Voice protection” may not be a term of art, but it’s the term Jonathan Richman used when he described it to me. But I’ve heard it elsewhere to describe this.

  I’m still looking for the filing from the Romantics case, don’t know if I have access to Detroit court fillings.

  But here’s the Black-letter law, California civil code (from LEXIS NEXIS):

  Cal Civ Code § 3344 (2007)
  § 3344. Unauthorized commercial use of name, voice, signature, photograph or likeness

  (a) Any person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person’s prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof. In addition, in any action brought under this section, the person who violated the section shall be liable to the injured party or parties in an amount equal to the greater of seven hundred fifty dollars ($750) or the actual damages suffered by him or her as a result of the unauthorized use, and any profits from the unauthorized use that are attributable to the use and are not taken into account in computing the actual damages. In establishing such profits, the injured party or parties are required to present proof only of the gross revenue attributable to such use, and the person who violated this section is required to prove his or her deductible expenses. Punitive damages may also be awarded to the injured party or parties. The prevailing party in any action under this section shall also be entitled to attorney’s fees and costs.

  (b) As used in this section, “photograph” means any photograph or photographic reproduction, still or moving, or any videotape or live television transmission, of any person, such that the person is readily identifiable.

  (1) A person shall be deemed to be readily identifiable from a photograph when one who views the photograph with the naked eye can reasonably determine that the person depicted in the photograph is the same person who is complaining of its unauthorized use.

  (2) If the photograph includes more than one person so identifiable, then the person or persons complaining of the use shall be represented as individuals rather than solely as members of a definable group represented in the photograph. A definable group includes, but is not limited to, the following examples: a crowd at any sporting event, a crowd in any street or public building, the audience at any theatrical or stage production, a glee club, or a baseball team.

  (3) A person or persons shall be considered to be represented as members of a definable group if they are represented in the photograph solely as a result of being present at the time the photograph was taken and have not been singled out as individuals in any manner.

  (c) Where a photograph or likeness of an employee of the person using the photograph or likeness appearing in the advertisement or other publication prepared by or in behalf of the user is only incidental, and not essential, to the purpose of the publication in which it appears, there shall arise a rebuttable presumption affecting the burden of producing evidence that the failure to obtain the consent of the employee was not a knowing use of the employee’s photograph or likeness.

  (d) For purposes of this section, a use of a name, voice, signature, photograph, or likeness in connection with any news, public affairs, or sports broadcast or account, or any political campaign, shall not constitute a use for which consent is required under subdivision (a).

  (e) The use of a name, voice, signature, photograph, or likeness in a commercial medium shall not constitute a use for which consent is required under subdivision (a) solely because the material containing such use is commercially sponsored or contains paid advertising. Rather it shall be a question of fact whether or not the use of the person’s name, voice, signature, photograph, or likeness was so directly connected with the commercial sponsorship or with the paid advertising as to constitute a use for which consent is required under subdivision (a).

  (f) Nothing in this section shall apply to the owners or employees of any medium used for advertising, including, but not limited to, newspapers, magazines, radio and television networks and stations, cable television systems, billboards, and transit ads, by whom any advertisement or solicitation in violation of this section is published or disseminated, unless it is established that such owners or employees had knowledge of the unauthorized use of the person’s name, voice, signature, photograph, or likeness as prohibited by this section.

  (g) The remedies provided for in this section are cumulative and shall be in addition to any others provided for by law.

• [Sarah Brand]

  #15: The law you cited only mentions the use of a person’s voice; it says nothing about an imitation thereof. Activision was authorized to cover the song, and the Romantics’ voices weren’t used at all.

  I agree with #4: from an artistic standpoint, a cover version ought to be demonstrably unique. But how would one legally determine when a song is too much like the original version? If a band has been authorized to cover a song, they ought to be able to profit from it without fear of a lawsuit.

• [Michae W. Dean]

  #16 wrote:

  “#15 – The law you cited only mentions the use of a person’s voice; it says nothing about an imitation thereof. Activision was authorized to cover the song, and the Romantics’ voices weren’t used at all.”
  —–
  This is black letter law that was applied in the Midler case, where singers were hired to imitate her vocal style.

  I’m not a lawyer (if there are any here, please chime in….), but I believe the operative clause is the phrase “…in any manner…”, in the first sentence of paragraph (a).

  As for how one would determine if a cover version is too much like the original, without doing in-depth research on the subject, which would be lawyer’s work, there’s a multitude of common standards that courts frequently apply, among them the “reasonable person” standard, which in this instance would mean would an average person believe the two recordings to have been done by the same person/group. It’s a matter of the fact-finder (judge or jury) applying the law to a specific set of unique facts.

  A personal observation on this – I believe myself to have very good ears and an above-average understanding of all types of popular rock music. I’ve never played the video game “Rock Star” (it seems to me like it would be “boring”), but the short snippets I’ve heard on TV all sounded like the original recordings to me. Yet Wikipedia says that the game uses a mixture of original recordings and covers. I was fooled, unless Activision used only the songs that used original masters in the ads and other places I’ve seen the game on TV.

  Bottom line: intellectual property law is not black and white. It contains and produces huge clouds of gray, and sorting this all out generates huge sums of money for a lot of people.
  —-
  #13 wrote: “You need a band’s authorization if you sound so much like the band that people could become confused….that’s the basis of ‘voice protection….If that were true, every bluegrass band in the world would be in trouble for sounding too much like every other bluegrass band.”

  You’re speaking of genre, not of one individual singer’s voice, which is what I believe we’re discussing here.

  – Michael W. Dean

  p/s, I’m leaving tomorrow afternoon for a week for my honeymoon, so I probably won’t be active in this conversation for that time. If it’s still going in a week, I’ll jump back in. It’s a subject that really interests me.

• [Parn]

  As far as I know, whether the tracks in Rock Band are “master tracks” or covers is public information. Some video games coverage websites, like GameSpy, released the tracklist with the covers easily distinguishable from the master tracks. Since I don’t have the game and I’ve never seen it personally, I don’t know if this information is present in the game itself. But I think it isn’t too far-fetched to believe that the target audience for this game would be interested in knowing exactly which are the master tracks, and they’ll probably know that the Romantics one is a cover. Moreover, when I read reviews of this game (and the Guitar Heroes), the reviewers always compare the covers and tell how spot-on they are. So I guess it shouldn’t be surprising to the Romantics that the cover band would try their best to sound just like the original recording. It’s hard to understand why they didn’t complain before, especially if they had the opportunity to review the track to approve it (I can’t know if they did, though).

• [Michae W. Dean]

  #22 “I keep waiting to see whether anyone’s going to lament the ongoing collapse of the recording industry, but so far it’s just not happening.”

  —
  I was in a band that did exactly one its records on Warner Brothers, then got dropped. That happens. But I also felt screwed from a number of ways they handled things, including promises made didn’t seem to be kept.

  You’re not going to hear that lament from me. When the dinosaur finally drowns in its own tar pits, I’ll be on the sidelines snapping tourist photos.

  MWD
  http://www.hitsofacid.com

• [VBWeenie]

  I believe they’re wishing they’d held out like Metallica did for more money. Check out this WSJ article.

  From the Wall Street Journal:
  “the firm that manages Metallica, says the band was previously approached to license its music to games, including Guitar Hero, but never agreed because makers only offered flat fees, instead of royalties based on sales.”

• [vsync]

  Yes, Michae W. Dean, the following is in the Constitution:

  To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

  Keep in mind that there was a vigorous debate as whether this was even a good idea. What’s in the Constitution was a nice compromise but it’s been abused for far too long. Time to knock it back a few notches and teach people a lesson.

• [davidduran]

  If a company used the likeness of Kiss without permission, Gene Simmons would probably sue them. The cover version of the song combined with use of the image might be confused for the original version of the song. How would you feel if somebody covered your band’s song and everybody assumed it was your band?

  One of the early MTV bands when MTV played music videos, The Romantics created their own unique image in addition to their distorted garage rock sound. To see how the band crafted their image throughout the 70s and 80s, watch music videos by The Romantics such as “Talking In Your Sleep,” “What I Like About You” and “One In A Million.”

  Hopefully The Romantics will win this lawsuit against Activision. Guitar Hero is geared up for young teenagers or developmentally challenged adults and is probably my least favorite video game on the market. Forget about all the dinosaur rock Led Zeppelin Pink Floyd Pearl Jam corporate rock garbage out there, long live The Romantics, a band who still sounds great on their new CDs and at their live shows.

• [David Bruce Murray]

  If deliberately mimicking someone else is illegal, there’s a lot of Elvis impersonators operating outside the law. Why is Elvis Presley fair game while Tom Waits is protected?

• [David Bruce Murray]

  A point about whether or not the Romantics “authorized” the use of their song…

  The Boing Boing article implies that they were approached and that they authorized a cover to be recorded, but the original article actually states:
  “The band’s attorneys said Activision properly secured permission to use the song What I Like About You, which allowed it to record a cover version. ”

  “Securing permission” would involve informing the publisher of the song of their intention to record the song. That’s how it works to record a cover song. You can secure what’s known as a “mechanical license” which is an agreement between you and the publisher to pre-pay for X pieces of product royalties in advance OR, if you anticipate selling a large volume of product as Activision would, you merely inform the publisher of your intention to record the song. The latter is called a “compulsory license.” “Compulsory” means the publisher CAN’T deny your right to record the song. There’s no “permission” involved.

  According to ASCAP, “What I Like About You” is administered by EMI Music Publishing. EMI publishing’s job is to collect royalties for the benefit of their songwriters and exploit their catalog as much as possible for maximum profit. They aren’t in the business of telling bands what style to use when a song is recorded. They are in the business of collecting as much money as possible. It’s residual income, and the more they can pull in, the better it is for them.

  This whole line of “securing permission” is irrelevant. I think there was some info that got translated improperly from the original article when Mark wrote it up for Boing Boing.

  You can’t be denied if you want to record a cover of a song that has previously been released. Songwriters can only choose the first artist that records their song. After that, the song is fair game to anyone who wants to record it as long as they pay the statutory royalty rate as product is distributed.

  The only real question here is whether or not a judge will allow some stupid law written only for artists who sound “distinctive” to apply or toss this case straight out of court, as it should be.

  Any law that is written only for the benefit of “special people” that could never benefit any ordinary citizen is bad law.

• [Nick D]

  I’m reminded of Tom Waits. Ad companies keep asking him for the use of his songs, and he steadfastly refuses, not wanting to dilute the impact of his songs by associating them with “toilet paper ads,” as he puts it. A position I really respect.

  A few ad companies have gone out and hired bands to do songs that sound just like him. He’s sued, and won.

  The point is, the individual sound of an artist is his or her property. Doing a cover and doing a dead-on imitation are two different things.

  Did Activision tell The Romantics what they were planning? Maybe they would have said no if they had known.

• [hmmm]

  Here is the link that you requested Michael.

  http://www.joegratz.net/archives/2007/11/22/romantics-detail-what-they-dont-like-about-activision/

• [davethegame]

  It seems unlikely that the reason for using a cover is to avoid paying royalties. The Guitar Hero series does feature a number of original recordings (which presumably they had permission for and are paying royalties for.) In fact, they’ve made an effort to increase the number of original (or even re-recorded by the band) tracks in the game.

• [BrooksT]

  If this argument holds water, wouldn’t it be the case that any cover band that sounds “too much” like the original would need a master license to perform?

  Seems like an odd and not-entirely-desirable outcome if cover bands are effectively required to not sound “too much” like the original, whatever that means.

• [OM]

  …Ah, the Romantics. Second only to IMXS as the epitome of the talentless garage band made marketable with some Dipity-Doo and tone-down glam clothing made from converted biker dugs. In my journalism days, we referred to the Romantics as “The Attack of the Adrian Zmed Clones”, and wondered just why they’d never guest-starred on TJ Hooker as Romano’s brothers.

  …In any case, I’d say screw’em. If they push the issue, release a patch where the CGI is replaced with pink-clad versions of the band, and the song replaced with Tiny Tim’s Tip-Toe Thru The Tulips, with the goal being to play the song as shitty as the Romantics played their own instruments.