Tribute acts must hit the right note on the IP stage
Demand for live music has rebounded strongly post-pandemic, if enthusiastic attendance at the various late summer UK Festivals is any indication. Sadly, the world’s best artists can only be in one place at one time, but if you can’t see the real thing, you might be tempted to catch a tribute act so you can sing along to your beloved band or solo artist’s iconic tunes, often at a discount rate.
Tribute bands are big business. UK entertainment booking site Alivenetwork.com currently lists 170 acts available to grace your event. Fees range from more than £11k for the Bootleg Beatles – perhaps the most famous and enduring Beatles tribute act – to a more modest £388 if The Real Diamond’s tribute to Neil Diamond is more your style. The most successful tribute acts have played sell-out arenas, major festivals, supported original artists and, in the case of the Bootleg Beatles at least, have now been active for five times longer than the eight-year career their idols enjoyed!
Imitation or infringement?
You might think that surely acts that owe their entire existence to the creativity and work of others raise IP issues, and you’d be right. When it comes to the songs themselves, the issue is managed by licenses purchased by performance venues from the national performance rights organisation – PRS in the UK and BMI or ASCAP in the US. But what about advertising, marketing and merchandise and even the look of the band itself – all are key components of the tribute experience and areas where acts could trip up over IP rights.
However, the extent to which tribute acts face penalties when they imitate their idols varies. Much depends on how the original band views the activities of their tributes, whether the acts genuinely infringe on registered marks, and how willing original artists are to engage in public legal battles over the issue.
Indicators of quality
It can be argued that having live bands or solo artists performing their music is a positive way to keep it front of mind with fans, but this is only the case if the act is good quality and doesn’t in any way bring the original band into disrepute, dilute its brand or damage its commercial standing. Some original artists get actively involved to ensure the quality of their tributes, involving themselves in the management of their act. In a great article on tribute acts written for the 2016 CITMA review, Trecina Surti mentions the case of ‘The Queen Extravaganza’, which was actually developed by Queen drummer Roger Taylor and where he and Brian May are official producers. (Incidentally, Queen Productions also holds the trade mark registration for Queen Extravaganza, alongside the band’s original marks).
Other artists are less enthusiastic about their tributes. Nineties arch-grunge exponents Pearl Jam recently sent a cease and desist notice to UK tribute act Pearl Jamm, asserting the likelihood of confusion arising from their use of a device similar to the band’s registered trade marks – which have been protected since 1999 in the UK) on merchandise and in their domain name. Cameron Malone-Brown of Potter Clarkson LLP has written more on this case and the PR fallout that resulted from the now renamed ‘Legal Jam’.
Certainly, original bands who wish to maintain a reputation as being above trivialities and financial gain should consider how a heavy-handed approach to infringement by tribute acts could come across in the court of public opinion, and consider a more informal initial approach. However, there is a balance to be struck… bands don’t want to be too publicly dismissive of their IP rights – as artist Banksy recently discovered when his public disdain for IP issues was used very effectively against him in his bid to prevent the cancellation of his ‘Flower Thrower’ trade mark.
What’s in a name?
Tribute acts often choose creative and amusing pun-based names, which clearly indicate the original band while also communicating their tribute nature. This is a valuable part of keeping on the right side of the risk of infringement. Excellent examples include Proxy Music, Fake That, The Faux Fighters, The Rollin’ Clones and Surely Bassey – the list is endless. These clever adaptations mean it is unlikely a fan would be confused enough to believe they were buying tickets or merchandise for the real thing. However, names that only modify the original band slightly sail closer to the wind, such as with Pearl Jamm, above and UK-based acts Foo Fighterz and Killerz. The use of logos featuring these names and using similar font and brand styling could be considered an attempt to mislead the public and constitute an infringement on the original.
Tribute bands that have their own registered marks
Oasis, in particular, is popular with tributes, having at least three bearing the monikers Noasis, No Way Sis and Oasish, respectively. The original Oasis trade mark was secured by the Gallagher brothers in 1998 in five classes, including class 41 – entertainment services including live concerts. Interestingly, Wayne Todd, a musician who has been part of several Oasis tribute bands, has a registered trade mark for Noasis, also in class 41, presumably unopposed by the band itself.
Tribute bands are undoubtedly a vibrant and entertaining part of the music scene, giving music fans a chance to hear their favourite songs in a live environment – something that will be even more popular following the enforced hiatus of the past two years. Both tribute acts and bands themselves should stay alert to IP issues to make they avoid infringing on the one hand, and damaging their reputation with heavy handed responses on the other, to make sure they don’t hit a duff note.
We’ve enjoyed all the pun-tastic tribute bands names we discovered writing this article. If you were a tribute band who would you do and what would your name be? Tell us on twitter @webtms or LinkedIn.