2
Nov/06

Tribute Brands and Authorized Touring Companies And Phish


smaller still tramps.jpg
Well there was a big chunk of afternoon.
I picked up the flyer pictured above, at lunch. I have never been to see a tribute band. Glenn has been to see Dark Star Orchestra and Dire Wolf.
We’ll ignore the copyright issue in the flyer other than to say ‘it’s better not to reproduce copyrighted artwork.’
The trademark issue is interesting. The use of a hit song title (or famous lyric) as the name of a tribute band, doesn’t really suggest endorsement by the original artists – in fact the argument can be made that such use is exactly interpreted by the public to suggest a tribute band. In an odd way, a name such as TRAMPS LIKE US is a suggestive mark, as it suggests a quality of the service (namely that the band plays Springsteen songs).
As to the big use of the name SPRINGSTEEN, it certainly might get someone to pick up the flyer, but would someone think that Springsteen is appearing at a bar in White Plains (did I ever tell you that I saw Springsteen at a party, once?). Would they think that this was an ‘authorized’ tribute band?
That led to a spirited conversation within the office as to whether in the history of the world, there has ever been a licensed tribute band (see post below), and if there has never been, could anyone ever go to see a tribute band in the mistaken belief that the band was endorsed by the original artist, given that no such band had ever existed.
It was also wondered whether there has ever been an authorized Elvis Impersonator and how close you can come to Elvis’ look without rights of publicity kicking in (did I ever tell you I saw Robert Gordon do ‘Blue Christmas’ at the Lone Star in 1983?).
Which led to a spirited discussion as to whether a band, dismayed by the low quality of its tribute bands, would ever want to send out a ‘touring company’ of itself.
While led to the observation that touring companies of plays need to be authorized because there is no such thing as a compulsory license for the book of the play, however could you do a ‘tribute’ version of a musical without its book or choreography?
Which led to a remembrance of Robert Stigwood Group v. Sperber, 457 F.2d 50 (2d Cir 1972), which held that an unauthorized performance of songs from ‘ Jesus Christ Superstar’ could be prohibited if the performance ‘evoked’ the dramatic work, by playing more than a few songs in the original sequence, and if the artists performed in the ‘roles’ of the original work.
Which led to the comment that a Who tribute band could do ‘Tommy’ in reverse order but not in correct order (and momentary contemplation of what ‘Tommy’ played in reverse order would sound like).
Which led to a remembrance of Phish performing ‘Quadrophrenia’ in its entirety in 1995 (which performance was released on CD in 2002). Which CD we had on hand and then played.

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