Analysis: it's one thing to do cover versions of a famous band, but what's the story when it comes to the legal ins and out?
By Liam Sunner, Queen's University Belfast
They say that imitation is the most sincere form of flattery, and there can be no more straightforward form of flattery than a cover band of a popular act. But is flattery a legal protection from infringing the intellectual property of the 'band' in question?
Let's look at the legal aspects of the ‘cover band’ and the protections afforded to both the original act and the cover act across the full spectrum of performances, venue requirements, brand and band name protection and artistic licenses of the work.
From both a legal and musical aspect, there is the question of the name and performance of the band/ cover band. This is assessed across several fields, including trademark law, passing off and copyright. While a band may insist they are ‘about the music’, a band will also exist as a legal and commercial entity.
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From E! Clash of the Cover Bands, who did Coldplay better?
As such, the band will have a number of legal mechanisms and remedies available to allow them to protect their artistic and intellectual property from a commercial perspective. While such mechanisms will primarily aim to ensure their songs are pirated, or used in advertised/ endorsements without their permission, they could aldso apply to a cover band playing in a local pub. However, it would be rare (and somewhat damning to the band’s public image) for this to be enforced with similar zeal or eagerness.
While the precise legal remedies and their operation will depend on the jurisdictions where the band, cover band and fans are located, they will fall within fair use or similar terms of use in a broad sense. It is worth noting that one central aspect would be the legal doctrine of ‘passing off’. This is related to two competing or similar goods that confuse the public that one good is the other or that there is some degree of endorsement of the good or service by the other.
It would be rare from a practical application (and damning from a musical application) that the cover band is mistaken for the actual band. If there is confusion, it would not be to a sufficient degree as required by the doctrine of passing off to apply. At the same time, the question of implying an endorsement through the use of the band name or references to them would be within the scope of passing off. However, this would be more limited to unauthorised commercial use of the band’s image, music, or general approval of a topic, product or event.
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From RTÉ Radio 1's Today With Claire Byrne, broadcaster Shay Byrne on the best cover versions of hit songs
This is particularly evident concerning the unauthorised use of music during political events. Such instances would be subject to the doctrine of passing off. When we consider the practical elements of the cover band, this endorsement and association would not be in a similar vain, with the significant majority being aware of the nature of the cover band.
In this connection, the cover band will be permitted to perform the songs of the band without having to pay royalties to the band for their work. Such permission exists under a broader license that the venue will hold that permits all bands to perform live covers at a venue. It would apply to the Foo Fighters playing Queen songs as much as a local Queen cover band playing the same song in the same venue.
That said, there is a growing trend of endorsements of cover band by the actual band, either as a commentary of their appreciation of their work or simply the opinion of a band (or individual member). This, in turn, has permitted or encouraged the commercial success of the cover band, particularly in instances where the band themselves have retired or no longer tour.
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From Official Queen Podcast, interview with Marc Martel from The Queen Extravaganza
In these cases, the cover band fills the artistic demand for the live performance of the works. While such endorsement primarily takes the form of public support or raising awareness, it can go as far as the members of the band joining the cover band.
Then, we have the growing popularity of what can be dubbed the official cover band, where they form part of a broader stage and performance experience. In such instances, they may be under the artistic direction of the band or surviving member, or they will have input into the overall performance aspect.
This may be financially beneficial for the band to various degrees based on their involvement or direct engagement with the process. A clear example of this would be the current Queen Extravaganza. While performing Queen’s back-catalogue under the artistic direction of Brian May and Roger Taylor, they are, at the core, a cover act.
Dr Liam Sunner is a lecturer in the School of Law at Queen's University Belfast
The views expressed here are those of the author and do not represent or reflect the views of RTÉ
