Hard graft to hold on to Guitar Hero status

Guitar Hero, the hugely popular Playstation game, has had a turbulent time recently in respect of claims that it is infringing third parties' intellectual property rights.

5th May 2008

Guitar Hero, the hugely popular Playstation game, has had a turbulent time recently in respect of claims that it is infringing third parties' intellectual property rights.

The most significant challenge has come from a reasonably surprising source; Gibson Guitar Corp, producers of the iconic "Les Paul". Gibson has accused Activision, the makers of Guitar Hero, of infringing a patent granted in favour of Gibson in 1999. The patent in question relates to a system and method that enables the generation and control of simulated musical performances. The system featured the use of a musical instrument, a 3D headset with stereo speakers and a pre-recorded concert.

The reason that this challenge may have come as somewhat of a surprise to Activision is that Gibson are already a major partner in the Guitar Hero product. The controller for the game itself is modelled upon the shape of the "Les Paul" guitar favoured by such real life guitar heroes as Jimmy Page of Led Zeppelin and Slash of Guns & Roses. Gibson has licensed to Activision the right to use the "Les Paul" shape, which is protected by trade mark. Activision has raised a counter action against Gibson to declare the patent invalid.

To further occupy Actvision's legal counsel, Guitar Hero has also been the subject of a separate dispute this time relating to use of one of the songs in the game. This has raised some interesting issues regarding the interplay of copyright infringement, imitation and trade marks under US legislation.

A band called "The Romantics" have raised a claim against Activision and others not for copyright infringement but because they believe the cover version used in Guitar Hero is too similar to the original recording of the song "What I Like About You" and therefore infringes other rights. Activision had permission to record a cover version but the Romantics claim that by recording a "sound-alike imitation" it had infringed the Romantics' rights of publicity relating to the band's "identity, persona, and distinctive sound" and had also infringed a trade mark that the band had in respect of that identity, persona, name and distinctive sound in relation to which the band were entitled to protection under the US Langham Act.

There are certainly some interesting arguments contained in the Romantics' claims but commentators suggest that the band may find this a difficult argument to win. If the band can be successful it will no doubt reap extensive financial rewards and it is perhaps no surprise that both these claims and in particular Gibson's patent infringement claim have arisen only now that Guitar Hero, three years after it was first launched, has proven itself a massive success, generating over $1 billion in sales.