Imitation might be flattery, but that doesn't make the Romantics any happier about it.
The Detroit rock band has sued the publisher of the popular video game Guitar Hero, claiming the game infringes the group's rights by featuring a sound-alike recording of the hit What I Like About You.
The lawsuit against California-based Activision, filed Tuesday in U.S. District Court in Detroit, seeks unspecified damages for use of the sound-alike recording. It's one of about 30 hit tunes featured on Guitar Hero Encore: Rocks the 80s, released in July for Sony PlayStation game consoles.
The band is also seeking an injunction against the game, which could take the bestseller off store shelves in the thick of the holiday shopping season. In the game, users try to play along to songs with a guitar-shaped controller. Activision has used a mix of original band recordings and cover versions in its Guitar Hero series, an award-winning line that debuted in 2005.
Copyright isn't the issue for the Romantics. 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. But by creating an imitation so much like the Romantics' original, they said, the company has infringed the group's right to its own image and likeness.
FIND MORE STORIES IN: Sony Playstation Activision Guitar Artists Bette Midler Tom Waits Romantics What I Like About You
Guitar Hero representatives did not return calls for comment.
Artists such as Tom Waits and Bette Midler have won legal victories on similar grounds for sound-alike recordings used in TV commercials. In those cases, the imitation recordings were ruled to have infringed the artists' rights to publicity by leading consumers to associate the artist with the advertised product.
What I Like About You was recorded for the game by the San Francisco music firm Wavegroup Sound, also named in the suit.
"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.
Jessica Litman, a University of Michigan law professor and copyright specialist, said the Romantics' suit may be different from the Waits and Midler cases in a few key ways.
Though she had not yet read the Romantics' complaint, Litman said that in general, "putting something in a game is quite different from putting it in a commercial."
The Waits and Midler cases hinged on the fact that the sound-alikes were used in advertising, potentially causing viewers to think those artists were making a commercial endorsement.
"Here it's being used as an intrinsic sound in the gameplay," Litman said. "That seems to me to be a loser on state law grounds and trademark grounds, because no one is going to be confused and think that they're endorsing Playstation or Guitar Hero. "
Horton said he thinks the Romantics' case is actually stronger because of the recording's use in the game.
"The music is integral to the way this product works," he said. "You have to have songs to play."
The attorney would not put a specific figure on potential money awards for the Romantics, which would likely be based on the number of Guitar Hero Encore units sold to date. The game, like the other three Guitar Hero titles, topped U.S. sales charts when it was released.
"The sales of this game are huge," said Horton. "We're all for good commerce. We just want to share in it."
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