For the past six months, Burton Cummings, founding singer-songwriter of the classic rock group Guess Who, is in a bitter legal battle to wrest control of his old band's legacy. Now, he's taking an aggressive and relatively unheard-of approach to making that happen: giving up certain rights so the band can't play his songs.
As Rolling rock Cummings and original Guess Who guitarist Randy Bachman sued the current iteration of the Guess Who (as well as the band's original drummer and bassist Garry Peterson and Jim Kale) last October, alleging that the band, which currently has the trademark Guess Who is “a cover band” using the original group's recording in advertisements “in an attempt to increase Cover Band ticket sales for live performances and give the false impression that Plaintiffs are performing.”
That case is still ongoing, and a federal judge rejected the band's motion to dismiss the founders' lawsuit earlier this week. But as the lawsuit continues, Cummings has gone nuclear, terminating the performing rights deals for all the Guess Who songs he wrote, removing the copyright protections that allow the band (or anyone else) to perform hits like “American Woman ” “These Eyes” and “No Time” in concert. In fact, he shot himself in the foot to try to shoot the band in the face.
“I am willing to do anything to stop the fake group. they take [Bachman and my] life story and pretend it's their own,” says Cummings Rolling rock. “They're not the people who made these records and they shouldn't act the way they did. This doesn't stop this cover band from playing their shows, it just stops them from playing the songs I wrote. If the songs are performed by the fake Guess Who, they will be sued for every incident.”
Cummings' strategy is both very aggressive and extremely rare. This is said by two music lawyers who have nothing to do with the case Rolling rock they had never seen such a strategy before. Cummings' attorney, Ellen Yu, spent several months working to properly terminate the license. He adds that part of why it's so unheard of for artists to consider such a strategy is that often, writers don't own the release, which is required to pull both ends of the license.
“Not many artists are both the writer and publisher of their songs, and Burton Cummings fortunately is, so this is a very rare case where the artist can take that action,” says Yu. “And I think this situation shows the direct relationship between false advertising and who they say they are.”
The move focuses on deals made through groups called performing rights organizations (PROs). The termination targets all the venues the band would play. Almost every concert venue in the country has blanket agreements with various PROs, such as BMI and ASCAP, which collect royalties on behalf of songwriters for public performances of their works. If a venue has licensing agreements, the venue's artists are free to cover any song from the PRO's repertoire.
But when Cummings and his publishing company Shilelagh Music terminated their performance agreement with their PRO, they removed the venues' permission to host any performances of the songs Cummings wrote. Cummings' attorney sent a memo to the band's attorneys earlier this week explaining that as of April 1, “none of the venues at which the Cover Band is currently scheduled to perform have the required license required for public performance” of of Cummings' songs, and that “In the event that individual members of the Cover Band publicly perform any of Shillelagh Music's compositions, Shillelagh Music intends to take legal action to protect its copyright interests.”
The strategy, to the team's dismay, seems to be working, at least for now. Two shows were canceled over the weekend, with the Barbara B. Mann Performing Arts Hall in Cyprus Lake, Florida announcing that the show was canceled “due to an unforeseen music licensing issue.” The Sunrise Theater in Fort Pierce, Fla., similarly made a last-minute cancellation Wednesday night, also citing the licensing dispute.
By Thursday morning, the Florida Theater in Jacksonville, the Saenger Theater in Mobile, Alabama, and the Peabody Auditorium in Daytona Beach, Florida — which would host the next three Guess Who shows — also announced cancellations. tickets for shows beyond these dates are still on sale as of the publication of this article.
A lawyer for Guess Who did not respond The Rolling Stones request for comments on broadcasts. In December, the group took to social media to call Cummings and Bachmans' suit “disrespectful.” In a filing, the band argued that “there is no dispute that defendants legitimately own the trademark 'The Guess Who,' and that consumers viewing an advertisement for a Guess Who concert would not reasonably assume that Bachman and Cummings merely they play because they were in the band many years ago.”
Assuming the band plays the classic songs of the era at its upcoming concerts, both the band and the venue they played in could be up for legal action, Cummings and his team say. Rolling rock.
But like most nuclear options, Cummings' strategy does not come without the risk of some mutually assured destruction. While the termination of the rights complicates the Guess Who's current shows, it may also significantly affect Cummings' earnings. In addition to working with concert venues, professionals also collect royalties from when songs are played on the radio, on TV shows, or even when they are played in the background in restaurants or shopping malls. With the license terminated, Cummings will likely lose out on seeing those royalty payments. And that's not just in the versions he's recorded, but in covers like Lenny Kravitz's Grammy-winning cover of “American Woman.”
But Cummings hopes what might amount to a flesh wound for him would be a mortal wound for the group he says is tarnishing his legacy. “Yes, I'll lose some money, but we'll find out what it's worth. I will not continue this fake band anymore,” says Cummings. “I will lose some money, but… the name is worthless without these songs. So what will they do? “Hey, the Guess Who's playing, but we can't do 'Share The Land' or 'American Woman,' we can't do 'These Eyes.' Nobody will be there.”
The complaint is the latest development in a decades-long dispute that erupted with last year's lawsuit. The fight began when the band's original bassist Jim Kale trademarked the name Guess Who in 1986, as the band had not secured the trademark before then. Since then, Kale has staged numerous tours using the name Guess Who featuring a heavily rotating lineup.
In the late 1980s, the Guess Who's original drummer Garry Peterson also joined the band. Kale retired in 2016, leaving Peterson as the only original member. But he doesn't play every show, Bachman and Cummings claimed, meaning some shows don't feature their original band members.
Since Cummings filed the lawsuit, he says the band has had access to Guess Who's Spotify For Artists page removed. (When the lawsuit was filed last fall, the band's Spotify page showed an image of the current Guess Who lineup, but as of publication, it's now an image of the old band.)
Cummings also says Rolling rock that within the past month, the band's lawyers have said they “will sue me if I ever say I was ever in Guess Who.” “Do you know how ridiculous this is? So what, I can't say I was born and raised in Winnipeg? That I'm Canadian?'
Cummings did not specify how much he expects to lose by giving up performance rights, nor did he say how much of a loss he is willing to take. But he seems willing to drive it into the foreseeable future to try and force the band to stop.
“How much is my life's work worth? You can't put it in dollars and cents,” he says. “It's wrong what they've done and for years, nobody did anything about it. But we're doing something now, and it might set some precedents because there are other acts out there that aren't real.
“This is so much more than just money, I wouldn't have pulled the catalog if it wasn't for it,” adds Cummings. “This is about the legacy of the songs and the fact that the cover band is doing everything they can to erase me and Bachman from the band's history. I see commercials for their shows and it's me singing “American Woman.” What they are doing is a scam because they are using real songs from real guys to push their fake band. I'm protecting the name of The Guess Who, I'm trying to protect what we did.”
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