How To Be A Rock Star

Guitar Hero. My kids love it and your kids probably do too. It's one of the hottest video game franchises around—and one of the loudest. And because of its integration of “classic” rock songs, it's even fun for parents to play. But that enticing aspect of the game led one rock band to court recently to try to stop sales of the game. Its experience is a good opportunity for a litigation lesson.

Activision released Guitar Hero Encore: Rocks the 80s, a1980s version of Guitar Hero, in 2007's third quarter. It included the Romantics' song “What I Like About You.” Soon after, the group's current members asked a Michigan court to issue a preliminary injunction to immediately stop sales of the game. The band argued that consumers would be wrongly confused into believing that the current Romantics somehow sponsored or endorsed this particular entry of the Guitar Hero franchise, when the truth was the band did not. This, according to their attorneys, entitled the current Romantics to demand monetary damages, despite Activision having obtained a valid “synch” license to reproduce and use “What I Like About You”—a license the band did not dispute. In fact, because the band members had changed since the song was released, they did not claim they owned the song's rights.

Not surprisingly, the court immediately pointed to the synch license and found that the license provided Activision with a valid right to make the recording in the game. Also, there was no evidence of consumer confusion over whether the Romantics endorsed the game. The facts showed no likely deception, and no “likelihood of success” in the band's ability to prove its case—a key factor when asking for a preliminary injunction.

The timing of the motion—in the midst of the holiday shopping season—also played into the ruling. The court noted that an injunction that time of year may be especially harmful, since seasonal sales, if not made, can be lost forever. Also, due to the public nature of the case, the court concluded that an injunction could irreparably harm Activision's substantial goodwill and tarnish its reputation. And so, the court denied the injunction.

It may come as a surprise, but usually the law makes sense. If your instinct tells you not to press your case, think hard before hiring a lawyer who tells you differently. It seems difficult to imagine what the Romantics hoped to accomplish, other than grabbing a piece of the Guitar Hero pie.

Don't make the same mistake. Knowing when to go after the bad guys, and when not to, will make you the rock star.