Are Tribute Acts Actually Legal?

kurt_dahlLawyer News, Uncategorized43 Comments

This is not a Beatles tribute. These men are just really high.

Every time I open the newspaper and peruse the local gig listings in my city, I’m struck by something: tribute acts are in high demand! More often than not, there are more tribute acts on the calendar than original acts. And based on the ticket prices to some of these shows, tribute acts are big business.

Indeed, in 2019, some of the highest grossing acts in North America are tribute acts, many of which can fill the largest venues here and around the world. Acts such as Arrival from Sweden (ABBA), Brit Floyd (Pink Floyd), The Fab Four (the Beatles), Damage Inc. (Metallica), Almost KISS (KISS), Hotel California (the f*ing Eagles man) and more continue to draw massive audiences around the world.

They must really slay ‘Got You By the Balls’

One study found that cover bands make, on average, $500 per night per member, while a successful tribute act can gross over $10,000 a night during peak season. These numbers would of course vary greatly depending on the act in question, but they do indicate the magnitude of the market.

So, the question remains: are tribute acts actually legal?

The answer might surprise you.

Technically, most tribute acts are in fact in violation of the rights belonging to the original act, to some degree. However, the current legislation in this area fails to adequately address the issue, and as such, a grey area has been created that has been left to the courts to decide.

Let’s look at how this has come to be.

I actually can’t tell if this is a tribute or the real thing. Sorry.

Cover Bands vs. Tribute Acts

From a legal standpoint, any band can cover a song during a live performance, as a result of blanket licenses obtained and paid for by venue owners to performance rights organizations (PROs) such as SOCAN in Canada and ASCAP or BMI in the United States. In theory, every time a song is covered in a live performance, the original writers of that song get paid. So you can cover any song or series of songs you like onstage, and the venues and PROs will sort out who should be compensated.

With tribute acts, however, more is at stake. Not only are the tribute acts performing the songs of the original act, they are trading off the name, brand, images and reputation of the original act. In the legal world we call this personality rights or the “right of publicity”.

If it can be shown that such behavior undermines or devalues the brand of the original act, it can create a compelling case for legal action against the tribute act. Specifically, if the original act can show that they lost audiences or live revenue as a result of the tribute act, or that their fans were being tricked into believing that a tribute act was the genuine original act, then there would be a strong case for legal action.

An example: in 2010, lawyers for Universal Music in Sweden sent out legal notices to more than fifteen ABBA tribute acts demanding that they stop trading off the name “ABBA”. Many of these tribute acts had been performing for decades and were forced to change their names or risk being sued. A spokesperson for Universal said: “We’ve had complaints from all over the world where fans feel they’ve been misled, and we feel it’s our duty to protect the ABBA brand from misuse.”

Another case occurred in 2009 and involved the all-female Bon Jovi tribute act Blonde Jovi. A firmly written letter from Bon Jovi’s lawyer stated that the tribute act was diminishing the value of their client’s brand and creating a “likelihood of confusion” between the two acts, and therefore demanded that they stop using the name immediately. (Side note: the “likelihood of confusion” part made me laugh…Jon Bon Jovi and Richie Sambora have great hair and all, but anyone who mistakes women for them deserves to be duped in my humble opinion). It should be noted that Blonde Jovi was using the Bon Jovi trademarks (or close facsimiles) in their posters and promotions, and I believe this was a fatal blow in this instance. In other words: don’t use the actual trademarks of the band’s you’re paying tribute to!

This is actually just The Cult.

What is the Legal Test for Violation by a Tribute Act?

The laws regarding right of publicity vary from jurisdiction to jurisdiction, so depending on where you’re based, the test may differ. Generally speaking, here are three factors that a court will look at to determine if a tribute act has violated the rights of the original act:

  1. Does the original act possess a commercial interest in their identity?
  2. Has the tribute act used some of the original act’s identity without permission?
  3. Has the tribute act’s use caused some sort of damage?

I’m so sorry Freddie. From Kurt.

When you apply these factors to most tribute acts, you are likely to find that an infringement of the original act’s rights has occurred. The first element is met without question: if the original act wasn’t commercial, nobody would be paying tribute to them! As for the second element, most tribute acts copy the original act’s identity down to their wardrobe, hairstyle, imagery, use of fonts, and more. The real question is the third element: whether real damage has occurred. As we’ve seen with the above examples, there is a compelling argument that tribute acts can in fact reduce demand or at the very least dilute the brand of the original act.

Upstart Led Zeppelin tribute act Greta Van Fleet

How to do a Tribute Act the Right Way

The safest way to pay tribute to your favourite act is to negotiate and obtain an actual license from the artist, to use their name and possibly derivatives of their trademarks for a fee.

I appreciate that this is not the ideal option, as A) you have to pay a fee and B) you have to get in contact with the original artist, which may not be easy.

If that isn’t an option, here are some things you should keep in mind to minimize your risk.

Not so fresh.

Rule #1 – Don’t Violate Copyright or Trademark

If you’re in a Guns N Roses tribute act, you cannot use images of Axl and Slash in your posters, online etc. unless you have consent to do so. Further, do not use the logos of the band you’re paying tribute to, such as the Guns n Roses logo, the Metallica font, the Rolling Stones tongue, etc. Of course, this happens all the time, but that doesn’t make it legal.

Rule #2 – Don’t Confuse Consumers with Your Tribute Act

If your poster uses large font for “Guns N Roses” and tiny font for “Tribute Act”, that could confuse fans and get you into legal trouble (though any fan that thinks they’re getting the real Axl and Slash for $15 has greater challenges in life if you ask me).

The band was adamant: if Todd was going to smile like an asshole, he’d have to wear sunglasses.

Rule #3 – Don’t Use Words Like “Official” or “Authorized” In the Marketing of your Tribute Act

Implying that you are the “official” or “authorized” tribute to any artist can get you in hot water, unless the artist has actually anointed you as such. The implied authorization is misleading to consumers and is actionable by the original act.

Conclusion

Tribute bands profit from the goodwill of the artists to whom they are paying tribute, and may in fact infringe, dilute, or tarnish the original artists’ rights in trademark, copyright and publicity.  As with all businesses, brand recognition and goodwill are essential to the success and profitability of musical artists.  An artist’s brand is what sells their records, clothing, and concert tickets.

Keith’s been working in the coalmine, and Mick has a cold sore.

I suspect that most tribute acts (and most people generally) have no idea that their tributes are in fact a violation of several areas of law. Surely, it has been the last thing on my mind when watching Led Zeppelin tribute Kashmir at my local dive bar. Or I should say, it used to be. Perhaps now I know too much.

Imitation is indeed the sincerest form of flattery. But in the world of tribute acts, the imitation might get you sued.

The only thing worse than his wig is his addition of the thumb to the rock horns. Back to the basement please.

43 Comments on “Are Tribute Acts Actually Legal?”

  1. Pingback: Are Tribute Acts Actually Legal?  – RightsTech Project

  2. Most of the acts being tributed are no longer physically able to perform the music themselves .. either the original members have died or moved on and that that remains is the singer or a bass guitarist . Or they have grown so old that singing about the subject matter usually the pursuit of a young hot woman is just weird .. tribute bands are if done right are a genuine preservation of the live performance of music . No different than symphonies playing Beethoven today . Why should we be denied the live performance when the original cannot do it. I’ve seen Chicago 5 times once in 75 and since Guitarist died and the singer left they have not been as good as Leonid and Friends which I saw last summer .

    1. Fair comment Brent. Brings up the question: does the legality of the tribute act depend on whether the original act is still active? Artists are still worth big $$ when they’re no longer alive (often worth more sadly), so the economic factor is still very much relevant.

      Kurt Dahl
      Entertainment Lawyer

  3. I played in a Journey tribute band ( as Jonathan Cain); Journey’s lawyer demanded 26 changes to our website. He watched our video and said he was into it for about 10 minutes before he realized he wasn’t watching the real thing. I enjoyed the few decent paying gigs we did, but never felt any real satisfaction being a copycat band. But I’m a composer in my own right; many really good musicians are just looking for a gig, any gig. As long as a tribute is not misleading the public–there isn’t that much harm to the original act because tribute bands can’t sell CD’s. Anyway; I’m done with it…legal or not.

    1. Thanks for sharing Ron! Journey is so good. And fair point RE the fact that these musicians are looking for a gig and a way to pay the bills. I appreciate that.

      Kurt Dahl
      Entertainment Lawyer

  4. Awesome article. Thank you for posting this. As a working musician and original artist, I am really getting sick of the tribute band phenomenon. Perhaps a few will get sued and the rest will start actually respecting artists’ rights to their own likeness, image, etc.

  5. Identity theft at it’s best. Venues that hire them, should be paying a royalty fee to the trademark owners, Period!!!

    1. Thanks Theresa! I agree to a certain extent – but am curious what that fee (and it’s size/scope) would look like. I don’t have an answer but it is worth further discussion for sure.

      Kurt Dahl
      Entertainment Lawyer

  6. Tribute bands that do not have permission to do so are not legal at all! Worse is that where I live (Iowa) I go to the local clubs and they play music, have big screen TVs running that no one can possibly hear (why have them at all then) and sometimes have live music which they under pay BIG TIME. If you look at the doors and windows etc you will see no posted ASCAP sticker. That means that most likely they are not paying for the right to publicly play music or television much less live music cover fees. This is not just one bar but pretty much all of them. I am a very good musician but have to make my living elsewhere because I will not play for under $100 a night. When you figure how much time and effort it takes lugging the gear and wear and tear etc you are losing money. I have good quality stuff and the bands I see playing have a small amount of crap for equipment. My practice rig is 2 times the size of their “PA” and sounds way better but these band whores will play for a loss which makes it impossible to make money at music. I wish they all got put on the spot bands, bars and all of them.

    1. hahaha – ONE BAD SONG could work, and the audience could guess which song was the worst. ONE BAD BAND a close second 🙂

      Kurt Dahl
      Entertainment Lawyer

    2. I never thought about it until now. My youngest daughter is 21 and she loves the 80’s music. For some of those great 80’s bands, for her to hear the music of that time live, the only option often is through a tribute band but I agree wholeheartedly that the original artists should be approached for permission. She’s got great taste in music, so much so that in grade 7 or 8 she did a project on 80’s music and made a mix tape as part of it and when the school custodian heard it he actually cried. For Father’s Day last year she took me to see Cutting Crew and Wang Chung at Dakota Dunes Casino. What a sweet heart of a kid! Long live the 80’s music and the Artists from that era. R.I.P. Neil Peart.

  7. the study cover band musicians make $500 almost deserves a few comments, not sure where that info comes from but on average you are about 500% too high, they make a hundred a night nowadays, same as 30 years ago. top tribute musicians make $500 maybe bit more, but they dont get to play 6 nights a week and are still low paid people.

    we know original music isn’t paying off anymore, dont start suggesting to support it on the backs of tribute musicians by trying to sue them. “the courts” is a rigged place full of rich lairs and cheaters, all musicians including tributes are poor people trying to put smiles on people faces.

    1. Hi Brian

      No cover band I know makes only $100/night but if your friends are making that, that’s too bad! But fair point, as I note, the spectrum is quite large and the numbers vary greatly from band to band and city to city. And the point of my article is not “we should start suing tribute bands”, it’s quite the opposite. I’m outlining how to do a tribute band legally. You seem to have missed the point.

      Kurt Dahl
      Entertainment Lawyer

      1. Have to agree with Brian. He’s not arguing with the statement regarding $500 a night, but with $500 a night PER PERSON. That’d be $2500 a night for a typical five piece band, which your run of the mill bar or other venue can’t come close to supporting on a continuing basis.

  8. My band “Nothing But Mammals” (Bloodhound Gang Tribute) was supposed to rehearse tonight but after reading this I’m just not into it.

  9. I had a similar run in with a Toby Keith fan. She contacted his management on Twitter and said she felt misled. She paid $20 for a spaghetti dinner, with entertainment from NEIL Diamond, Patsy Cline and Toby Keith. his management tagged me in it saying i “represent him well and we look like we could be brothers”.
    Would that be a legal “permission”?
    I had to explain to the fan that “No we did not bring a dead Patsy Cline back to life to doop you for $20.”

  10. Being in a couple of tribute bands myself, ( a Green Day and Chili Peppers tribute) My opinion may be bias ha
    Both band names are a play on words.. Green Dookie and The Red Hot Chili Peckers. Unlike the some names that might use the abbreviations like A.B.B.A. I think it’s safe to say no one has thought we were trying to pass our shows off as the real bands. It’s just a fun way to tie the band in with the real band and make it easy for fans to remember our names.
    Also being a fan of tribute bands, I think as we see more and more bands hiring musicians or auditioning musicians to continue the brand they have created, such as bands like KISS and Journey or other bands giving their blessing to tribute acts such as Queen and Pink Floyd, we will see more legal complications and more cease and desist orders aimed at the large tribute productions.
    As time goes on , tribute acts and bands that act like sport teams will be very important to keeping the music alive. Listening to the recordings is fine for some but seeing and hearing it live to many other fans is much better.

    I do see and understand some of the issues raised. Such as logo’s , Fonts band names and pictures that may imply that the real artist is playing.. but there also is a creative aspect to it that is flattering in some cases. Especially when there is a connection like a Beatles tribute calling them selves the Fab 4 or a Rolling Stones tribute called the Stones Rolling.. it gives the audience a sense of make believe, which is very important to those that may never or could never see the real artist.
    I personally can only see tribute bands helping a real bands career.. and since they are reaching a audience most of the times that only radio or TV can get to.
    Being in a couple of tribute bands my self.. I get to see and feel the enjoyment of playing make believe…It’s a great way to celebrate the music and have a good time. and keep the music alive like it deserves for the fans and the musicians. With out tribute bands a lot of fans would have to settle for TV or radio.. and although that can be alright. It just can’t keep the party Rocking and Rolling all night or Every Day as much as a live tribute band can! Let’s hope tribute bands stay legal.. with out them… many fans would never know what it’s like to see a live show and that would be a shame.

  11. Interesting article!

    I am curious though about your comment that “cover bands make $500 per night per member”. Where did you get this stat? It is certainly far above the norm.

    1. Hi Deborah. I did some Googling and found a few studies. As I note in the article, these numbers vary drastically. And many friends in cover bands make around $2000/night divided by 4 members. But I know there is no standard and things vary significantly.

      Kurt Dahl
      Entertainment Lawyer

      1. Great article..

        I’ve been in the biz of Tribute acts since 1992. I’ve only ever played 1 “bar gig” as a tribute artist and back then we charged $2200.00 for two 45-minute sets. Now, depending on which show I am working in, I usually make between $700-$1,200 per member/per show with a rare occasion of $1800 per person/per show. So you are pretty close to financial figures as an average. Bow if these bands are playing bars, they are getting lower pay and not tapping into the theater market which would have zero issues paying 4K or more for a show. As I joined one of the longest running Beatles tribute bands touring as a new cast/new member, the lawsuits were already settled. McCartney and Ono tried to sue the former Broadway show, but lost their case.

        I later became a Buddy Holly and toured ALOT, so much in fact, it became my career with some beatles shows thrown into the mix. This is where MY personal legal issue occurred. Yes, Holly tragically died in 1959 so you would think there would be no damages fiscally or otherwise in doing the show. WRONG. I received two separate letters. One letter was regarding likeness. Buddy’s likeness is trademarked (didn’t know you could trademark a likeness, but I know now, you can). We came to an agreement and settled without a monetary payout. I had to make sure that the word TRIBUTE TO appeared on any and all advertisements. So got to retain looking exactly like Buddy in my shows and advertising. I also CANNOT appear in Lubbock, TX as
        “Buddy” (an agreement between widow Maria Elaina Holley, local venues and Museum that bars any Buddy Holly tributes from appearing in costume in performance).

        Second, I received a letter from the legal department of MPL (some famous person at MPL owns Buddy’s music catalog. I kept the letter because, how cool is that to have caught the attention of such a huge, busy icon????) regarding proper payment for use of the songs. I had to show that I was not selling any videos of the shows or CDs produced for sale of me perfor.ing the music. Simple issues, but I know other tribes that have done this “on the side” and are lucky and haven’t been caught. So that is a no-no and will also get you sued. And that suit, could cost you more than you can imagine.

        I took a 3 year hiatus due to cancer and subsequent surgeries and hooe to return to the market soon.

  12. It’s an interesting one. I love seeing tribute bands, only because the original won’t play near me or the band is no longer around. I think it’s poor form that this should stop, only so “some” can make more money.
    In saying that, I am a musician and have played other artists songs. I wrote to the artist and they gave me permission to perform them, in public . It didn’t cost me anything. I did not try to emulate their appearance though. I only wanted to play the songs and they were happy with that.

    1. Agreed Rob! I don’t think tribute bands should stop, rather advising them on how to keep doing it without getting into hot water. All the best

      Kurt Dahl
      Entertainment Lawyer

    1. My pleasure Scott! And contrary to some of the comments here, I didn’t mean any insult whatsoever with this article. I enjoy tribute bands all the time. Keep rockin’.

      Kurt Dahl
      Entertainment Lawyer

  13. I’m in a tribute that pays homage to a classic British metal band that is currently on its farewell tour. A few years ago, we were asked to open for them, but with the other tribute that we (same members) do for Montrose. We were asked to not play any of their material, lol! It was a great experience, got to meet them as well! We told them that we do a tribute to them and got a thumbs up across the board. They didn’t indicate that they had a problem with it and seemed quite surprised.

    1. That is an awesome story Donny! Thanks for sharing. Perhaps I should have made that clearer: the original act can decide whether they allow it or not!

      Love Montrose as well. Rock on.

      Kurt Dahl
      Entertainment Lawyer

  14. Hi Kurt..my brother and I went to court re. Blues brothers..against the Belushi Estate..in 2013..2014 who we briefly worked for previously.
    It was an interesting case..which we basically won 21 of 22 incidents.
    You can find it online..was a big case..lots of press in the Hague netherlands courthouse.
    By the way you have a good last name..wonder if we have some common family..lol

    1. Thanks for sharing this Geoffrey! I’ll check out the case for sure. Such an interesting area of the music biz and the law. P.S. love the last name! My family is from Norway originally. So somewhat close…we may be related indeed!

      Kurt Dahl
      Entertainment Lawyer

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