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 Business
http://berkleevalencia.org/academic-programs/master-degrees/master-of-artsin-global-entertainment-music-business
TRIBUTE AND COVER BANDS
Mónica Manubens Ortiz de Landázuri
GEMB – 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 Valencia 2
Tribute and Cover Bands
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 Valencia 3
Tribute and Cover Bands
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
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
2
3
http://dictionary.cambridge.org
http://www.imusicdictionary.com
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 Valencia 4
Tribute and Cover Bands
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
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
4 5 Emerson,
R.W. Business Law. Fifth edition, 2009. Barron’s (p. 589)
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 Valencia 5
Tribute and Cover Bands
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.
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
6
http://www.businessdictionary.com
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 Valencia 6
Tribute and Cover Bands
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
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.
http://www.musiclawseminar.com/2011/01/29/bob-marley-estate-winsunfair-competition-suit/
7
8
Brabec, J., Brabec, T., Music Money and success. 7 ed. 2011. Schirmer Trade Books.
(p. 310-311)
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 Valencia 7
Tribute and Cover Bands
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 wellknow marks.
http://www.van-halen.net/forum/showthread.php?7109-Cover-band-lawsuitsettled-for-40-000
9
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 8
Tribute and Cover Bands
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.
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.
10
http://www.undercover.fm/news/7888-bon-jovi-sue-tribute-band
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 Valencia 9
Tribute and Cover Bands
“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.
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
11
http://www.fakefestivals.co.uk
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 50 th
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 Valencia 10
Tribute and Cover Bands
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 Valencia 11
Tribute and Cover Bands
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.org
Music dictionary: http://www.imusicdictionary.com
Copyright infringement: http://www.natlawreview.com/article/yer-out-homecopyright-infringement-lawsuit-against-jon-bon-jovi-strikes-out/
Unfair competition suit:http://www.musiclawseminar.com/2011/01/29/bob-marleyestate-wins-unfair-competition-suit/
Tribute Bands resources: http://www.tributecity.com
http://www.toptenz.net/top-10-tribute-bands.php
Tribute Bands: http://www.musiczirconia.com/beatlemania.html
Tribute Band Festivals:
http://www.musikaze.com/es/musica/festivales/festival.php?site=TRIBUTEBANDSFE
STIVAL
http://www.ocioengalicia.com/index.php?&verNoticia=2900
http://www.tribjam.com
http://www.glastonbudget.org
http://www.fakefestivals.co.uk
Origins: https://litigationessentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&doctype
=cite&docid=29+S.+Ill.+U.+L.+J.+481&srctype=smi&srcid=3B15&key=658ed2c494cad
956c029cc077899a9f8
http://www.ascap.com/~/media/Files/Pdf/licensing/general/IMLAbrochure.pdf
Vail 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-forlikelihood-of-confusion/
http://www.undercover.fm/news/7888-bon-jovi-sue-tribute-band
http://www.musicradar.com/news/guitars/bon-jovi-sue-female-tribute-band202490