American power pop rockers The Romantics are suing video game firm Activision over a version of their song 'What I Like About You' that appears on the game 'Guitar Hero Encore, Rocks The 80s', where gamers try to press the buttons (on the games console controller or a special 'fake guitar' controller) that correspond with the notes of a famous song.
The Romantics song appears in the game, but it is a rerecording of it produced by session musicians. The band are suing because they claim that the rerecord is too like the original - "virtually indistinguishable" in their words - and that that contravenes their rights as a band.
What 'rights' exactly will vary from state to state, because there is no US wide statutory protection for either personal image or the sound of your voice. The band will rely on so called 'publicity rights' in those states where such things exist (about half of the States). This relies on State laws that protect an individual's right to stop others using his or her identity for commercial reasons without their permission. In those states where publicity rights are not protected by the law there may be a case for claiming that the use of a person's likeness for commercial purposes is an invasion of privacy, and therefore the games firm is liable under privacy laws.
Even if the band can prove that the version of 'What I Like About You' in the game is "virtually indistinguishable" from their 1980 version, and even in those States that protect 'publicity rights', it will be interesting to see if the courts will accept that those rights - that more often apply to visual appearance - extend to versions of songs that sound similar. That said, Billboard cite a case where Bette Midler successfully sued a company who had used a sound-a-like to record a song for an advert, with the courts ruling that because the track sounded like it had been recorded by Midler it violated her right of publicity.
The Romantics are looking for the courts to stop the distribution of the game, and to force Activision to account for profits made from it so far, and to compensate them.
PS: 'What I Like About You' was written by The Romantics members Wally Palmar, Mike Skill, Rich Cole, and Jimmy Marinos, but I assume they no longer control the publishing rights to it, otherwise presumably they could have stopped its use in the game by not granting permission for any version to appear.
PPS: This issue relates to something we've ranted on once before - the sound-alike session singer versions of top pop songs sold via iTunes et al. These come from those muzak CDs you find in crates in pound shops, but when listed on iTunes it is not at all clear that the songs are sound-a-like re-recordings and not the original (especially when they are credited to something like 'in the style of [original artist]'). This is a very real problem for those trying to push catalogue sales of original recordings online, who worry consumers are accidentally downloading the sound-a-like versions when they think they are getting the original (especially as both versions will be the same price in iTunes town). This is something we raised with Apple a few months back, but they didn't seem too bothered about the possible confusion. No surprise there though.