Members of rock band the Romantics have sued Activision Publishing over its
"Guitar Hero Encore, Rocks the 80's" videogame, which uses the band's "What
I Like About You" recorded by musicians that the band claims sound too much
like them.

The suit, filed yesterday in federal District Court in Detroit, claims that the sound-alike recording of their song improperly imitates the band's sound, which the members have developed since 1979. The recording makes it "virtually indistinguishable from the authentic version" and confuses consumers into believing that the band actually recorded the music and endorsed the product, the suit says.

Guitar Hero is a series of videogames. The games play songs through audio speakers while the video monitor on a Sony PlayStation 2, which connects to a simulated guitar, shows animated characters playing guitars and color-coded musical notes. The object of the game is for the player to play the notes in the same order and at the same time as those on the monitor, receiving points for accuracy.

A right of publicity exists in about half the United States. It protects a person's right to prevent others from using his or her identity for commercial reasons -- product endorsements, advertisements, motion pictures, photographs, etc. -- without the person's permission.

In those states without publicity laws, privacy law may support a legal claim. Every state protects a person's privacy; sometimes use of a person's name or likeness is an invasion of privacy.

While most states that have a right of publicity protect any person's identity, usually only people whose voices are very well known may prevent others from using or imitating their voices.

An advertiser once employed someone to sing and imitate the voice of Bette
Midler without her permission. A court held that this commercial use of a sound-alike version of her voice violated Midler's right of publicity

The suit lists as plaintiffs the Romantics a/k/a Master Beat, Wally Palmar, Mike Skill and Coz Anler. It names as defendants California-based Activision, Harmonix Music Systems and Redoctane as developers, publishers or distributors of Guitar Hero. It also names Wavegroup Sound as performers of the music.

The band members want the court to enjoin further distribution of the game and order the companies to provide an accounting of all profits. They also want compensatory and punitive damages in an unspecified amount.

The defendant companies were not immediately available for comment.