Imagine If You Could See the Beatles Again?!

April 08, 2019

What is it about human nature that we can’t get enough of a good thing? From nightly childhood readings of Goodnight Moon to binge watching West Wing for the second time, to wearing a college sweatshirt until it is threadbare, it seems we will watch something, wear something or eat something familiar and loved, over trying something new and different, given the choice. This lay observation of human nature also applies to music, as evidenced by the current popularity and high number of tribute bands. Tribute bands, sometimes called a tribute act, are bands or individual musicians who copy and mimic well-known musical artists and bands in song, style and performance. Fans can’t get enough of musical greats, so when bands disband or artists pass away, they are left wanting more of the same, that good same. That’s where tribute bands step in to fill a void and pay tribute—and judging from the plethora of such bands, the can’t-get-enough-of-a-good-thing thing isn’t going away anytime soon. As the Tribute Planet website entices: “Tribute bands look and sound like the real thing. It’s like seeing a 2-hour concert of your favorite band like Journey, Kid Rock, Pearl Jam, or the Rolling Stones or AC/DC in their prime! Or imagine if you could see The Beatles again?!”

The tribute band phenomenon brings with it curiosities and questions, given the legal framework surrounding music and musicians’ rights, which is copyright law. Copyright is a form of federal protection (17 U.S.C. §§ 101 et seq.) granted to authors of original works that are fixed in a tangible form of expression. An original work is one that is independently created by a human author and possesses at least some minimal degree of creativity; a fixed work is one that is captured in a sufficiently permanent medium so that the work can be perceived, reproduced, or communicated for more than a short time (Circular 1). Copyright protection begins at the creation of a work and lasts the lifetime of its author plus seventy years. Publication or registration is not required for copyright protection, though registration is a requirement for initiating an infringement action according to 17 U.S.C. § 411. Examples of copyrightable works include songs, novels, poems, plays, choreography, pantomime, sculpture, graphic design, films or architectural works.

One obvious query: do tribute acts breach the copyrights of the bands or individuals they imitate?

To the understand if or when a musician’s rights are breached, let’s first take a look at the scope of federal protection found in copyrights. The U.S. Copyright Act grants creators the following exclusive rights:

1. The right to reproduce the copyrighted work;
2. The right to prepare derivative works based upon the work;
3. The right to distribute copies of the work to the public;
4. The right to perform the copyrighted work publicly; and
5. The right to display the copyrighted work publicly. (Circular 1).

As it relates to copyright owners and tribute bands, musicians have the right to say if and how their music is performed by others, which includes live performance, broadcast on radio, streamed online or played in a juke box. Those wishing to perform or play protected music need permission to do so, with limited exceptions. But given the ubiquitous nature of music—it surrounds us, as we sing along to 1960s hits while selecting fruits and vegetables at the market or enjoy soothing instrumentals in a trendy farm-fresh restaurant or sigh in exasperation in response to the overly cheery hold music of an insurance company—how do myriad permissions for these public performances come about? To simplify, entities known as performing rights organizations (PROs) negotiate licenses and collect royalties on millions of songs on behalf of copyright holders, thus eliminating the need for musicians to negotiate thousands of performance requests. Broadcast Music, Inc. (BMI), American Society of Composers, Authors and Publishers (ASCAP), The Society of European Stage Authors and Composers (SESAC) are the three primary PROs in the United States, according to Michael S. Newman (“Imitation Is the Sincerest Form of Flattery, but Is It Infringement?” Touro Law, Vol. 28, No. 2).

Obtaining licenses to play or perform copyright-protected music is not unique to the tribute band craze but extends to cover bands, as well. Cover bands are bands that perform a wide mix of music, say at a restaurant-bar or school reunion. Whether imitating one band or playing cover songs, performance licensing requirements are the same.

Performing rights organizations usually offer broad, “blanket” licenses that cover the public performance of their members’ copyright-protected music in a variety of settings (ASCAP). For example, a restaurant, shopping mall or hotel may obtain licensing to play background music. Or, a bar may obtain a license for live performances on the weekends. Costs are calculated according to how the music is distributed (e.g., live or online), the size of the establishment and the size of listening audience. Fees are distributed to copyright owners.

As to the previous question, do tribute acts breach the rights of the bands or individuals they imitate? The answer is no, if they are covered by a performance license, either negotiated by the venue in which they perform or negotiated directly with the original act by the tribute band itself. As long as a tribute band has a performance license, it may continue to sing for its supper. (It should be noted, however, re-recordings of copyright-protected music, such as creating a video or CD, are separate licenses that are usually negotiated with the music publisher and record label.)

Not only do tribute bands perform the music of the acts to which they pay tribute, but they often strive to imitate their appearance. And some bands do this really well. Think the Fab Four Beatles tribute band. (Has John Lennon come back to life?)  Is that okay? According to Newman, tribute “bands, particularly those that pay homage to bands that dress up in a particular manner or paint their faces, walk a fine line in regard to whether they are violating the original artists’ right of publicity. The right of publicity is a legal doctrine that grants an individual the exclusive right to commercially exploit his or her own identity for profit” (“Imitation,” Touro Law, Vol. 28, No. 2). So, very briefly, when it comes to looking like an original artist, it’s publicity rights, not copyright breach that can be of concern. Additionally, questions of trademark infringement can arise if a tribute band riffs on the original artist’s band name, song titles, logo or marketing materials. Newman points out that names that are extremely similar to the original artists’ names, such as “Blonde Jovi” and “Lez Zeppelin,” may cause consumer confusion, and tribute bands named after song title may also constitute infringement because of the secondary meaning relating to the band (“Imitation,” Touro Law, Vol. 28, No. 2).

To date, tribute bands operate within licensing requirements that are the same as cover bands. But there are those who argue that licensing for tribute bands should be amended to better guard artists and their copyright-protected material because performing an original band’s entire repertoire verses performing one cover song is a whole different animal. Even so, it’s a fair bet that any future changes in licensing won’t make a bit of difference in the number and growth of tribute bands. We just can’t get enough of a good thing.