This article has been written by Monica Manubes, a student at Berklee College of Music in Valencia, for the course “Business and Intellectual Property” in the Master in Global Entertainment and Music Businesshttp://berkleevalencia.org/academic-programs/master-degrees/master-of-arts-in-global-entertainment-music-business

TRIBUTE AND COVER BANDS

Mónica Manubens Ortiz de LandázuriGEMB – IP Law

CONTENTS

1. Introduction p.2

2. Definition of Tribute and Cover Band p.3

3. Copyright and trademark infringement p.3

4. Unfair competition p.5

5. Differences between Spanish and US legislation p.5

6. Licenses for Public Performance p.6

7. Copyright infringement – famous cases p.6

8. Curiosities p.8

9. References p.11

Berklee College of Music ValenciaTribute and Cover Bands

2

1. INTRODUCTION

Being a musician is not an easy task. Sometimes bands that perform their own music are not that successful and in most occasions concert venues are not willing to invest in unknown artists.

Tribute and Cover Bands are thus a good solution for both concert promoters and musicians. Bar owners can assure that certain number of consumers will spend some time (and also money) in their local, since they are offering live music, that in my opinion is much more interesting than a regular DJ. At the same time having a Tribute or a Cover band could also imply having a lower risk than choosing a band or artist performing their original tunes, unless they will already have certain number of local fans.

Furthermore, most of the songs the Tribute or Cover bands perform are well know by the general public and so it ensures strong communication and connection between artists and audience.

On top of that, Tribute and Cover bands seem to be a profitable business, and as Larry Honigbaum, singer and guitarist for The Lost Sailors, Grateful Dead tribute band said:

“Tribute Bands are very easy to market”1

Above all, I decided to center my research in such topic due to personal reasons. My brother is a singer and guitarist, and nowadays member of two Tribute Bands “The Early Beatles” and “Morning Glory” and also a Cover band “Reservoir Rocks”.

1 http:cornellsun.com/node/24120

The Early Beatles Morning Glory - Oasis

Berklee College of Music ValenciaTribute and Cover Bands

3

Reservoir Rocks

2. DEFINITION OF TRIBUTE AND COVER BAND

According to the Cambridge Dictionary, a Tribute band is a group of musicians who play the music of a famous pop group and at the same time pretend to be that group, in most of the cases the famous group has disbanded, ceased touring or is deceased.2

2 http://dictionary.cambridge.org

A Tribute band strives to capture every nuance of the imitated artist’s actions and appearance for a perfect imitation.

A cover is a recording that remakes an earlier, often successful, recording with a goal of reaching a wider audience. 3

Therefore, a Cover band is a group of musicians who perform earlier music, or hits from different artists or groups.

These bands have grown into a big business mainstream phenomenon over the last decades. Their origins go back to the 1970s, when first Elvis Presley impersonators appeared.

3. COPYRIGHT AND TRADEMARK INFRINGEMENT

As you can appreciate in the last pictures both types of music groups, and more specifically the Tribute bands not only use original tunes and lyrics, but also original brand logos, image, and special characteristics from live performance, which are distinctive from the genuine ones.

Berklee College of Music ValenciaTribute and Cover Bands

4

Can Tribute and Cover bands be accused from copyright or trademark infringers? Or both?

Copyright is the exclusive right to print, reproduce, sell, and exhibit written material, musical compositions, art works, photographs, movies and television programs, data systems, and other creations placed in a tangible, preserved medium of expression. This exclusive right also extends to the public distribution, display, or performance of that copyrighted work and to the preparation of derivative works (e.g., a movie version of a copyrighted novel).4

According to such definition, Tribute and Cover band can certainly be accused from copyright infringement. In order to avoid any problem with the original bands and songwriters, those kind of bands should ask the original performers for an authorization in order to use their songs in a public performance as we will see in more detail in section 6.

Additionally, trademark is considered to be a distinctive symbol, word, letter, number, picture, or combination thereof adopted and used by a merchant and manufacturer to identify his/her goods. Even the color of a product can be trademarked when it acts as a symbol to distinguish one brand from another.5

3 http://www.imusicdictionary.com

4 5 Emerson, R.W. Business Law. Fifth edition, 2009. Barron’s (p. 589)5

Although it is not required, the owner or user of a trademark may seek to register it in the corresponding Patent and Trademark office.

In the US, courts have extended Lanham Act of 1946 protection (known as the Trademark Act, which is a federal statute that regulates the use of Trademarks in commercial activity) to trade dress; which could be the packaging or dressing of a product as it relates to a business’ overall marketplace image. We should consider that unregistered trademark dress is protected only if it is distinctive, has acquired a secondary meaning, and is an ornamental feature rather than a functional feature.

Therefore according to the last trademark definition, since a Tibute and Cover band very often use symbols, typography, and similar costumes in order to resemble to their idols, trademark infringement can also arise.

Thus, Tribute and Cover bands should be very careful not to commit any infringement in relation to the neighboring rights (in such case, performance rights).

It is important to mention that in order to succeed on a claim for copyright infringement, a plaintiff has to prove ownership of a valid copyright and copying of constituent elements of the work that are original. Thus it has to be proven that the

Berklee College of Music ValenciaTribute and Cover Bands

5

copyrighted and the alleged infringing works are substantially similar. An ordinary person should be able to distinguish if both works sound alike and additionally, a music expert should prove that original elements such as theme structure, arrangements and rhythm patterns have been copied from the original work.

4. UNFAIR COMPETITION

As we have seen, Tribute and Cover Bands should we aware of any copyright or trademark issues that could affect their performance. Likewise, the bands should also consider unfair competition laws. Unfair competition is understood as the unjust and often illegal attempt to gain unfair competitive advantage through false, fraudulent, or unethical commercial conduct. Examples could include below-cost selling, counterfeiting or imitation, dumping, misleading advertising, rumor mongering, trademark or trade secret infringement.6

Thus, not only Tribute and Cover bands can be accused from copyright or trademark infringement but also claims for unfair competition can be filed.

6 http://www.businessdictionary.com

Particularly in Spain, the article 12 of the Law 3/1991, of 10th of January, refers to the disloyal competence as any activity made to take advantage of someone else’s reputation. Therefore unfair competition is also regulated by Spanish legislation.

A famous case was the Fifty Six (Bob Marley’s children corporation) and A.V.E.L.A. lawsuit in November 2009. Fifty Six sued A.V.E.L.A. alleging violations of its federal and common law trademark rights, their rights in Marley’s persona under Nevada’s rights of publicity statute, federal unfair competition, and interference with prospective economic advantage due to the use of unauthorized image of Bob Marley on t-shirts.7

5. DIFFERENCES BETWEEN SPANISH AND US LEGISLATION - SGAE vs ASCAP/BMI/SESAC

Performing rights, that are protected in most of the countries, recognizes that a writer’s creation is a property right and its use requires permission as well as compensation. In most of the cases where music is played (with the exception of the

Berklee College of Music ValenciaTribute and Cover Bands

6

home), a user is paying a license fee, an organization is collecting for those fees and writers and publishers are being paid royalties for the performance of their copyrighted works. 8

Collecting societies are the organisms that are responsible for negotiate license fee agreements with the users of music and distribute them back to the right holder members whose music is being performed. Therefore such societies are working to protect any infringement of its members work.

Both Spain and US have legislations that protect copyright and trademark, even though they differ, the same system of collecting societies applies, such organisms work in benefit of its members trying to avoid any rights infringements.

SAGE is the only collecting society that works in Spain, and protects the work of any songwriter member. In US there are tree different collecting societies ASCAP, BMI and SESAC, being ASCAP and BMI the main ones.

6. LICENSES FOR PUBLIC PERFORMANCE

7 http://www.musiclawseminar.com/2011/01/29/bob-marley-estate-wins-unfair-competition-suit/

8 Brabec, J., Brabec, T., Music Money and success. 7 ed. 2011. Schirmer Trade Books. (p. 310-311)

According to the last section, in both countries Spain and US, a band should obtain a license in order to perform other band’s songs. That being said, in most of the cases such authorization is directly obtained by the bar or concert venue owner.

For instance, in the US if a group plays copyrighted music without permission, the law provides that a court could assess damages from $750 to $30,000 for each work infringed. Additionally, they can require the infringer to pay copyright owners’ attorney’s fees and court costs, as well as entering an injunction against the offender.

Moreover, such kind bands should consider that infringement of a registered trademark may be enjoined (ordered stopped by a court) and damages awarded.

Besides such license for public performance, the band or bar owner should ask for an authorization to the original band, listing all the titles of the songs the Tribute or Cover band will be performing.

7. FAMOUS CASES OF COPYRIGHT INFRINGEMENT

With the current economic stranglehold, prominent musicians and their record labels are suing left and right for copyright or trademark infringement. There are

Berklee College of Music ValenciaTribute and Cover Bands

7

many famous cases of such infringements, and a bunch of lawsuits that had covered such topic.

One of the most important cases was the Vail club lawsuit. Public venues that play ASCAP registered songs need to pay an annual fee for a license to do so, and since Steven Kovacik, Vail club’s owner, was not doing so he was accused of copyright infringement. He allowed bands to play 10 copyrighted songs in January 15 and 16 of 2006.

The lawsuit contended that the defendants allowed public performances of songs such as "Heartbreaker," "Whole Lotta Love," "Rock and Roll" and "Black Dog," written by Jimmy Page, Robert Plant and other members of Led Zeppelin; "Hot for Teacher," written by Eddie Van Halen and David Lee Roth of Van Halen; and "You Shook Me all Night" written by Angus and Malcolm Young members of AC/DC.

Kovacik was arguing that ASCAP never offered him a license, but indeed he should have asked for such permission before the performance took place.

Van Halen and Led Zeppelin were suing the nightclub owner and were asking for a fine going from $750 to $30,000 per song plus attorney’s fees.9

On April 2009, Bon Jovi sued Blonde Jovi, a female tribute band based in Los Angeles for copyright infringement. Bon Jovi did not want to allow the use of Blonde Jovi or any other kind of trademark, because it could create a likelihood of confusion, and the female tribute band could capitalize on the goodwill and reputation of its well-know marks.

After temporary using the name Blonde Jersey, the band reverted back to Blonde Jove and was finally disbanded on February 2010.10

Some critics argue that this case in particular would be understandable if Blonde Jovi’s members were out there performing for big crowds at major venues and making records, but it was only a local tribute band who were probably working very hard playing clubs and other small venues just trying to make a living, and honoring Bon Jovi at the same time.

Finally, in 2005 the tribute band Beatallica was threatened with a lawsuit by Sony Berklee College of Music Valencia

Tribute and Cover Bands8

Music Entertainment. The band used to interpret The Beatles songs, with a Metallica style.

Thanks to Lars Ulrich, Metallica’s drummer and co-founder, Beatallica won the legal battle and still record and tour today.

8. CURIOSITIES

8.1. Tribute Festivals

Certainly Tribute bands are a popular trend and there are already some Music Festivals specialized in such are.

Spain:

In Spain there are two main Tribute Band Festivals, located in Galicia, Pontevedra and Ferrol are the Festival’s host villages, and both festivals are organized in July and August respectively.

9 http://www.van-halen.net/forum/showthread.php?7109-Cover-band-lawsuit-settled-for-40-000

10 http://www.undercover.fm/news/7888-bon-jovi-sue-tribute-band

Other countries:

The tradition of organizing Tribute Band Festivals is widely common in UK and US.

Glastonbudget is the greatest Tribute Festival in the UK. Its 9th edition is being prepared for next 24th to 26th of May 2013. The organization expects around 15,000 fans, and 160 bands, which will play in 6 different stages.

Tribjam is an American Tribute Band Music Festival organized in Nashville, US. Next edition will take place in January 2013.

“Get a Fake Festival in a Town Near You” is the slogan used by the UK franchised company that organizes Tribute Band Festivals. As they introduce themselves:

Berklee College of Music ValenciaTribute and Cover Bands

9

“Fake Festival is a fabulous opportunity for families and local communities to enjoy a fun packed music day out together at their local playing field, village green, sports field or university or college campus. Additionally, a chance to meet up with friends and to listen to some great live bands.”11

Eleven editions for summer 2013 are already organized along UK’s geography.

Fake Festivals offer the opportunity for any community to organize a festival, taking into consideration that the location should be accessible and placed within walking distance of the local community and potential attendants.

8.2. Playing with/for the original ones

There are also certain benefits of being a member of a Tribute Band. In certain occasions, tribute band’s members have been called up to join the actual band they were playing tribute to or a related band that features members of that band.

11 http://www.fakefestivals.co.uk

The first case of a tribute performed joining the original band was in 1996, when Tim “Ripper” Owens, from the tribute band British Steel replaced Judas Priest’s lead singer Rob Halford. This case was the inspiration for the 2001 film “Rock Star”.

Another case was when Tommy Thayer, who played with Cold Gin, Kiss cover band replaced Ace Frehley, the lead guitarist in 2002. His cooperation with Kiss started long time ago, working as a songwriter and session guitarist in 1989 and 1998 recording Hot in the Shade and Psycho Circus albums.

Ray Manzarek and Robby Krieger of The Doors formed a new project called Manzarek-Krieger. The singer Dave Brock, who had performed in The Doors cover band Wild Child for 20 years, joined them in 2010.

In some cases the relationship between the original band and its Tribute band can be very strong. An example of that is Pink Floyd and Australian Pink Floyd, those last ones were asked to at David Gilmour’s, a founding member of Pink Floyd on his 50th birthday party. Therefore it is understandable that the original band will never file a lawsuit against Australian Pink Floyd.

8.3. Parody acts – exception (fair use)

There are a number of exceptions to copyright. Fire use is one of them. Therefore if a band is performing on stage using someone’s’ tunes, no copyright infringement can be claimed if the final show is considered a parody.

Berklee College of Music ValenciaTribute and Cover Bands

10

Therefore, in such cases there is no need to ask anyone for an authorization. Some examples would be The Rutles and Zombeatles, for The Beatles, Take Fat for Take That and 2 Live Jews for 2 Live Crew.

To sum up, the business of Tribute and Cover bands seems to be quite important, but bands should not ignore that they should obey the rules and laws of every country in which the performance will take place.

Berklee College of Music ValenciaTribute and Cover Bands

11

9. REFERENCES

Books:

Emerson, R.W. Business Law. Fifth edition, 2009. Barron’s (p. 589)

Goldstein, P., Hugenholtz, B., International Copyright. Oxford University Press. Second edition, 2010.

Brabec, J., Brabec, T., Music Money and success. 7 ed. 2011. Schirmer Trade Books.

Henning-Bodewig, F. Unfair Competition in EU and member states. Kluwer Law, 2006. (p.123)

Kamperman Sanders, A. Unfair Competition law, the Protection of Intellectual and Industrial Creativity. Clarendon Press, 1997. (p.30)

Films and documentaries:

“…An incredible simulation”

“Mockstars”

Websites:

English dictionary: http://dictionary.cambridge.orgMusic dictionary: http://www.imusicdictionary.comCopyright infringement: http://www.natlawreview.com/article/yer-out-home-copyright-infringement-lawsuit-against-jon-bon-jovi-strikes-out/Unfair competition suit: http://www.musiclawseminar.com/2011/01/29/bob-marley- estate-wins-unfair-competition-suit/Tribute Bands resources: http://www.tributecity.com http://www.toptenz.net/top-10-tribute-bands.phpTribute Bands: http://www.musiczirconia.com/beatlemania.html Tribute Band Festivals: http://www.musikaze.com/es/musica/festivales/festival.php? site=TRIBUTEBANDSFESTIVALhttp://www.ocioengalicia.com/index.php?&verNoticia=2900http://www.tribjam.comhttp://www.glastonbudget.orghttp://www.fakefestivals.co.ukOrigins: https://litigation-essentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&doctype=cite&docid=29+S.+Ill.+U.+L.+J.+481&srctype=smi&srcid=3B15&key=658ed2c494cad956c029cc077899a9f8http://www.ascap.com/~/media/Files/Pdf/licensing/general/IMLAbrochure.pdfVail club lawsuit: http://blogcritics.org/music/article/van-halen-and-led-zepplin-sue/ Bon Jovi’s lawsuit http://beatcrave.com/2009-04-06/bon-jovi-sues-tribute-band-for- likelihood-of-confusion/http://www.undercover.fm/news/7888-bon-jovi-sue-tribute-bandhttp://www.musicradar.com/news/guitars/bon-jovi-sue-female-tribute-band-202490