Just this afternoon, Judge Nancy Edwards denied the Romantics motion for an injunction. She promises to publish an opinion forthwith. Guitar Hero will continue to fly off the shelves well past Christmas. I would expect the Romantics suit to whither and die in a matter of weeks, because it appears to be a particularly odious piece of work.

What makes the Romantics lawsuit against the makers of Guitar Hero, the wildly popular video game, so egregious is that a reading of the complaint and the facts they allege leaves one with the distinct feeling that none of the people they are suing did anything wrong. In a nutshell, the one-hit wonder Romantics are upset because a video game company -- which is paying a handsome royalty for the use of their one hit -- hired musicians to make a new recording of the song, which the Romantics think sounds too good.

A little background on the arcane issues of music licensing: when you hear a song in a movie, on TV, or in a video game, or just about anywhere besides on the radio, there's probably a whole lot of different people getting paid. The people who wrote it get paid. The people who publish the song (who may or may not be the people who wrote it) get paid. The people who played the instruments and sang get paid. The people who own the recording (usually a record company) get paid. When a song is played on the radio, only the people who wrote and publish the song get paid. Which is why, for instance, when you hear I Don't Want to Miss a Thing on the radio, it's Diane Warren, and not Steven Tyler who says "cha-CHING!" It's also why, for the most part, the guys in the band who don't write ride the bus, while the guys who do write own the bus. Anyways...

Guitar Hero Encore: Rocks the 80's, like all the previous versions, allows the player to simulate playing guitar parts to a variety of popular songs that have been properly licensed and re-recorded by studio musicians. The Romantics seemed to be quite surprised to find out that What I Like About You was included in the game. I'm quite surprised they didn't actually already know, since someone in their camp issued a license or it never would have happened. And, it was probably a synchronization license, which means that it was negotiated with the publisher; this means someone could have said "No!" if they wanted to.

Whoever is in charge at the Romantics World Headquarters would also have to know that they were never asked for a master use license -- permission to use the Romantics version of the song --so they knew that their recording was not going to be used. (What I really want to know is who handles this stuff for the band, and why someone from in the band didn't know all this stuff way ahead of time, or why someone in the band hadn't already seen and approved the game? At least that's the way I do it with groups I represent.) Maybe the boys sold out all their rights to a publishing company long ago; if so, tan pis.

In their law suit, the Romantics claim that they "were informed by fans that the [g]ame contained the [s]ong as performed by..." the Romantics. If were really the group's recording -- used without proper permission -- that would be a problem. But it's not the Romantics, and the Romantics know it! In the same paragraph of their complaint, the Romantics say they "learned that the [s]ong was not the [original recording]..." and that the game maker had been promoting the game with language that said "as made famous by the Romantics."

Doesn't everybody know that as made famous by means it's not the original recording? The Romantics knew. Read this from the complaint: "In the music industry, the phrase 'as made famous by' typically means the song is not the [original recording] but rather an imitation." Um, duh? So isn't the game exactly what it says it is? And properly licensed as well? (Another aside. You know those "Now That's What I Call Music" CDs? All the hits by the original artists? Well, back in the sixties some real smart rip-off artist used to put out albums of hits and advertise that they were the hit songs "Recorded by The Original Artists." Problem was The Original Artists was the name these guys came up with for a bunch of lame studio musicians who were doing crummy re-recordings! You can't do that anymore.)

The Romantics rely on a couple of lawsuits where recording artists were imitated and won big money. But, the facts of this case appear to be completely different from Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988) and Waits v. Frito-Lay, Inc., 978 F.2d 1093 (9th Cir. 1992). Neither Ford nor Fritos ever said that it wasn't the actual artist. Ford wanted you to believe that Bette Midler was crooning about cars. Lays wanted you to believe that Tom Waits was growling about Fritos.

Ford and Fritos used imitators, and they never did anything to alert anyone to the fact that these famous people were not endorsing their product. Ford actually tried to hire Midler, and imitated her only after she refused and told them that she did not do any commercials. Tom Waits had a "publicly avowed policy against doing commercial endorsements," and his disapproval of artists who did was well known. In fact, the person responsible for recording the faux Waits had previously asked Waits to record a Coca-Cola commercial and stated that "you never heard anybody say 'no' so fast in your life." But, Hey! Romantics! No one asked you! And it's not a commercial endorsement...

So what's the Romantics beef? When you read the complaint, you get the distinct impression that everything would have been OK if the game maker had used a crappy version of the song! They state that "None of the Defendants have permission of Plaintiffs to perform a sound-alike imitation of the Song." Guys, no one needs to get permission unless they are trying to make people believe it's the original, and that's not the deal here; remember the 'as made famous by' bit? They also claim that "A number of fans have reported to them that they believed the [s]ong on the[g]ame was the [original recording] or otherwise performed by Plaintiffs." Uh-huh.

So the game maker should pay because you and your fans are morons? I gotta tell you, there's a lot more people who know that none of the Guitar Hero games have the original recordings, and everybody knows that if they did, the company would be bragging about it, as they are with their newest version of the game.

What's the story behind the story? It's Christmas time. What better time for some washed up one hit wonders to try to hold up the sales of a phenomenally popular game in order to extract a little extra, if not deserved, cash?

It seems Christmas can bring out the worst in some bands. It was Christmas time some 18 years ago when some over-built and under-brained bodybuilders in an unsigned band named Pump tried to stop all sales of Aerosmith's new CD Pump, because it was "confusing their fans." Oddly enough, when we appeared in court to fight the motion for injunction, the muscle heads told us that for a nice cash payout, all confusion would end. We told them to go pound sand and Judge William Young pretty much told them the same thing in a more genteel but no less forceful way.

I expect to see a massive pounding of sand in the Detroit area in the weeks and months to come.