Tribute Bands, Their Impact on Copyright and Trademark Infringement, and the Fair Use Defense

On November 22, 2006, the band Australian Pink Floyd played a show at Allstate Arena in front of over 10,000 people, and for a ticket price of $49.50. The band proclaims itself as "the World's No. 1 Pink Floyd Tribute band," they play only Pink Floyd songs, and they use similar lights and special effects that were commonplace in the original Pink Floyd concerts. The generous profit that the band likely generates based on attendance figures and ticket prices brings up a valid question of the legality of the band's name and substance of its concerts. Is the band violating copyright law? Trademark law? Both?

In terms of copyright law, the venue where any cover or tribute band plays has to pay the American Society of Composers, Authors and Publishers (ASCAP) a varying annual licensing fee for any copyrighted songs that the bands play. The ASCAP pays out its members (currently over 240,000) according to how often that the songs are played on the radio. The ASCAP is notorious for its arbitrary and arguably unfair methods of enforcement. Recently, the ASCAP tried to extract money from both a funeral home and from a Girl Scouts of America camp whose campers sang the ASCAP-protected song "This Land is Your Land." Just this past October, the ASCAP slapped Oregon-based bar owner Michael Dorr with a federal copyright infringement suit, seeking $750 to $30,000 for each song, plus attorney fees, after a local band performed in Dorr's bar and covered three ASCAP-protected songs.

Tribute and cover bands may also misappropriate the logos, names, and dress of the original artist, all of which are traditionally protected by trademark law. Trademark issues of misappropriation of goodwill, dilution and the violation of the right of publicity are also created by tribute bands. While the nature of tribute bands is arguably per se infringement, bands can use the nominative fair use defense, which can be applied where the tribute band's use of the real band’s mark refers to something other than the real band’s product. The court in New Kids on the Block v. News America Publishing Inc. articulated a three-part test for nominative fair use:

First, the product or service in question must be one not readily identifiable without use of the trademark; second, only so much of the mark or marks may be used as is reasonably necessary to identify the product or service; and third, the user must do nothing that would, in conjunction with the mark, suggest sponsorship or endorsement by the trademark holder.

A tribute band can tip the first prong it in its favor if it can convey its essence without using the actual trademark. People would know that Australian Pink Floyd is not the real Pink Floyd, but it can be assumed that they play Pink Floyd's music. Tribute bands will also incorporate a band's song or album names into their own name, such as the U2 tribute band Elevation and the Fleetwood Mac tribute band Rumours. The second prong of the test is often a fact-based decision. The court will consider such factors as the similarity of the names or the extent to which the tribute band uses the logos or other indicators of the real band. Because Australian Pink Floyd has the name "Pink Floyd" in their title, and because they use similar concert effects, a court might rule against them in regards to the second prong. The third prong is also mostly a fact-based decision. The court would consider factors such as the similarity of names or logos, and also survey results, which are a good indicator of consumer confusion.

As it turns out, Australian Pink Floyd was asked to perform at David Gilmour's, a founding member of Pink Floyd, 50th birthday party, so it is likely assumed that there is a working relationship between the two parties and an understanding that there will be no trademark lawsuits filed. Even if Pink Floyd decided to sue, Australian Pink Floyd could make a strong fair use defense.