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District Court Denies Preliminary Injunction For Use of Song In Video Game Lawsuit

By Media Law Prof Blog

In Romantics v. Activision Publishing, the U. S. District Court for the Eastern District of Michigan denied a request for a preliminary injunction “distributor of video game and related entities from advertising or distributing game containing new recording of song, originally released by band in 1980, which, pursuant to synchronization license, is used in synchronization with visual images to enable game play….” The court determined that the plaintiffs had not met the 6th Circuit’s “four-factor test. Under this test, the following factors must be balanced: 1) whether Plaintiffs have shown a strong or substantial likelihood of success on the merits; 2) whether Plaintiffs have demonstrated irreparable injury; 3) whether the issuance of a preliminary injunction would cause substantial harm to others; and 4) whether the public interest is served by the issuance of an injunction.”

The game in question 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.”

The Defendants 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.”

Plaintiffs objected that “that a substantial number of ordinarily prudent consumers of Defendants’ Game have been, or are likely to be in the future, confused, deceived, or mistaken about whether the Plaintiffs sponsored or endorsed the Game. Plaintiffs seek a preliminary injunction against Defendants to prevent the manufacture, distribution, sale, or marketing of the Game during the pendency of the civil action Plaintiffs filed against Defendants for the right of publicity, Lanham Act, unfair competition and unjust enrichment claims. Although Plaintiffs seek injunctive relief, Plaintiffs’ counsel has publicly admitted that Plaintiffs want to receive money for the alleged harm caused to them by the use of the Song in the Game.”
The case is Romantics v. Activision Publishing Inc., No. 07-14969, 2008 WL 186370, E.D.Mich.; 36 Med. L. Rptr. (Decided Jan. 22, 2008). Here’s a link.