Finding no right of publicity in the sound of a voice, a Michigan judge has ruled that '80s rockers The Romantics cannot sue the publisher of the “Guitar Hero” video games for misappropriation of their “distinctive sound.”

“[W]hile Michigan law protects against the unauthorized use of a plaintiff's name or likeness, it does not recognize an analogous claim based on the sound of a voice, let alone the allegedly distinctive sound of a combination of voices,” U.S. District Judge Nancy G. Edmunds said in granting summary judgment to Activision Publishing.

A cover version of The Romantics' hit “What I Like About You” is included on "Guitar Hero Encore, Rocks the 80s.” Activision had acquired a “synchronization” license to use the song, but the band claimed the cover was such a slavish imitation of the original that it amounted to an infringement of their publicity rights.

The 9th U.S. Circuit Court of Appeals has upheld publicity rights claims involving the “distinctive” voices of singers Bette Midler and Tom Waits. “The use and commercial exploitation of a song that imitates a singer's distinctive sound constitutes a violation of the singer's right of publicity,” The Romantics argued in a court brief.

But Edmunds said the band had “failed to establish that their 'sound' is distinctive,” noting that “not all Plaintiffs performed on the original master recording of the Song, and the lead featured singer on the original master recording of the Song is not a Plaintiff in this case.”

Activision licenses the rights to songs for “Guitar Hero” and then has WaveGroup Sound, a collective of musicians, record cover versions of them. Edmunds also dismissed The Romantics' Lanham Act claim that consumers would mistake the cover of “What I Like About You” for the original.

“Plaintiffs filed this suit over nine months ago, yet they have not provided the Court with a single affidavit from a confused consumer,” she said in an Aug. 19 opinion.

Ultimately, the case was little more than a clumsy attempt to circumvent the Copyright Act, which, as Edmunds observed, “expressly disallows any recourse for a sound-alike recording of a song.”

A copyright infringement claim would fail, the judge said, because “Defendants' synch license gives them the right to make their own recording of the Song to integrate into the Game without violating Plaintiffs' right of publicity.”