A dispute over tribute concerts that feature musicians who previously performed with Earth, Wind & Fire was back in court this week. The company that manages the band's brand reckons that the way those shows were billed - initially as the ‘Earth, Wind & Fire Legacy Reunion’ - confused fans and even venues into thinking that they were official concerts, when they were not. In fact, the confusion was "tremendous', a legal rep claimed this week.
Tribute bands and concerts always need to be careful not to suggest official endorsement from the band or artist they are celebrating, even if some of the musicians have had an official connection with the band or artist in the past. And in this case, Earth Wind & Fire IP LLC argues, promoters Substantial Music Group and Stellar Communications did not exercise any such care. So much so, they should be held liable for trademark infringement.
However, according to Law360, a legal rep for the promoters insisted in court that fans knew exactly what they were getting when booking tickets, especially after the concerts had been renamed 'Legacy Reunion of Earth, Wind & Fire Alumni'. Ticket buyers, he reckoned, would assume "they're listening to a band consisting of people who used to play for Earth, Wind & Fire", and that's exactly what they were listening to.
Responding to the allegation that images of the original band had been used to promote the alumni concerts, adding to fan confusion, attorney David Friedland said that this happened in materials prepared by third parties, such as venues, rather than by his clients. Substantial and Stellar had also sought to have the adverts featuring those images removed.
Speaking for Earth Wind & Fire IP LLC, Mark Lee argued that that just proved how much confusion these shows have caused. Because it wasn't just the fans who were confused. "There's tremendous middleman confusion", he said. "Confusion by the venues or ticketing agencies. We have that in spades here".
Lee wants the judge overseeing the case to issue a summary judgement confirming that Substantial and Stellar infringed his client's trademarks. "Having performed in a band does not allow you to mislead the public as to your present association with the trademark", he added.
The promoters also want a summary judgement, but in their favour. Because their shows feature musicians who were previously members of Earth, Wind & Fire, they reckon the names used for the concerts were simple statements of fact. Which, in legal terms, means that the way they used the Earth, Wind & Fire brand constitutes "a nominative fair use of the trademark".
Earth Wind & Fire IP LLC - which is owned by the family of late Earth, Wind & Fire founder Maurice White - initially filed its trademark infringement lawsuit with the courts in Florida in March last year. Substantial and Stellar then tried to have the case dismissed on jurisdiction grounds, but without success.
The judge said he would now rule on the motions for summary judgement in the next few weeks. If he declines to issue any such judgement, the case should get to trial in May.