THE GUESS WHO Members Burton Cummings And Randy Bachman Sue Band Using The Guess Who Name

Earlier today, founding members of THE GUESS WHO — Burton Cummings and Randy Bachman — filed in federal court in Los Angeles a false advertising lawsuit in response to a group of "hired musicians" who have been touring and recording using the band's name. In addition, according to the lawsuit, these "hired musicians" have been using photographs that include Cummings and Bachman to create the false impression that the hired cover band is the original THE GUESS WHO.

Jim Kale (a former bassist who was kicked out of THE GUESS WHO in 1972),and Garry Peterson (the drummer who played with the group until it disbanded in 1975) are being sued for allegedly concocting a deceptive scheme that has falsely led fans into buying tickets for the cover band's live shows and implying that Cummings and Bachman are performing at the shows when in fact they have no affiliation with the "cover band".

The lawsuit also claims that Kale and Peterson have been removing images of Cummings and Bachman from the landing pages of music streaming platforms such as Spotify and Apple Music and replacing them with pictures of the cover band in an effort to boost sales of tickets for live performances. The suit additionally states the defendants have been using songs written by Cummings and Bachman to promote the cover band without obtaining proper licenses.

The "cover band"'s actions are alleged to have impeded both Cummings's and Bachman's own ability to book live performances in the United States and tarnished the band's legacy. The plaintiffs seek in excess of $20 million in damages as well as a court order directing Kale and Peterson to take corrective measures notifying the public and all venues where the cover band is playing with truthful advertising.

"With this lawsuit, Randy and I hope to set the record straight and protect fans from imposters trying to rewrite history," says Cummings. "Even after we're gone, the legacy of THE GUESS WHO will live on, and we want to make sure that legacy is restored and preserved truthfully."

Bachman adds: "Burton and I are the ones who wrote the songs and made the records. It's Burton's voice and my guitar playing on those albums. Anyone presenting and promoting themselves as THE GUESS WHO are clones who are ripping off our fans and tainting the legacy of the band. It's about time for the real story to come out."

Cummings and Bachman are represented by veteran entertainment attorneys Helen Yu and Henry Self of Yu Leseberg and James D. Weinberger of Fross Zelnick.

BLABBERMOUTH: THE GUESS WHO Members Burton Cummings And Randy Bachman Sue Band Using The Guess Who Name

'Fake Bullshit Shows': Guess Who Co-Founders Sue Ex-Bandmates

Helen Yu & Henry Self of Yu Leseberg and James D. Weinberger of Fross Zelnick represent The Guess Who Co-Founders who filed suit against Ex-Bandmates calling the current lineup a “cover band”

By Ethan Millman

Guess Who founding members Burton Cummings and Randy Bachman have sued fellow original members Jim Kale and Garry Peterson as well as the band itself, accusing them of misleading fans to believe that the current iteration of the group — which Bachman and Cummings have labeled as “little more than a cover band” — is the original Guess Who.

In a federal suit filed in Los Angeles on Monday and obtained by Rolling Stone, Bachman and Cummings allege that the current lineup — where Peterson is the only current member who was also in the band’s classic era — has used the band’s name, photos of the original lineup, and recordings that Bachman and Cummings performed on “to give the false impression that Plaintiffs are performing as part of the cover band.”

“They’ve taken mine and Randy’s history, the history of the Guess Who, and stolen it to market their cheap ticket sales in their fake bullshit shows,” Cummings tells Rolling Stone. “It takes away everybody’s legitimacy.”

The counts listed in the suit are false advertising, unfair competition, and violation of right of publicity, and Cummings and Bachman are seeking as much as $20 million in damages. 

Bachman and Cummings say they’ve struggled with the problem for years, but that it has further escalated in the past two years since the pandemic ended and the band hit the road again. Bachman says that he and Cummings — who plotted a tour together before the pandemic in 2020 — have wanted to tour as the Guess Who but that the dispute has made that impossible. 

Attorneys for Kale and Peterson did not immediately reply to a request for comment, but in a 2012 article in the Winnipeg Free Press, Kale said that “Cummings signed off on the name in 1977 … and he hasn’t stopped his pissing and moaning ever since. What the hell do you think I was going to do, start a scrapbook? Here I was with a whopping grade 10 education and I don’t have a trade and I’m too old for a paper route. I gotta make a living.”

The publication further reported that Kale said he’d give the name back if Cummings and Bachman paid him and Peterson. “I’ll have a band of trained monkeys out there just to piss him off,” he said at the time. “I’m prepared to be that petty … I’m really, really sick of it. I’d love to take the high road, but I’m not going to. I’m his karma.” 

Cummings sent cease-and-desist letters to Guess Who manager Randy Erwin in April and May, according to the suit, and he was allegedly told they would take immediate action, though that apparently didn’t happen. Cummings sent a separate cease-and-desist letter to the band’s attorney earlier this month and hadn’t gotten a response, per the suit.

The Guess Who record in the studio circa 1966 (left to right): Jim Kale, Burton Cummings, Garry Peterson, and Randy Bachman. MICHAEL OCHS ARCHIVES/GETTY IMAGES

“It’s been going on for a long, long time, and we hear from fans who say they spent money on tickets and [Cummings and I] weren’t there,” Bachman tells Rolling Stone. “Enough is enough. I get my kids seeing these ads asking me if I’m playing Park City, Utah, next week. The fans are getting ripped off over and over, and Burton and I lose because we can’t tour the Guess Who even though we want to. We wrote the music for this band and want to give it to the fans. The clones that are up there weren’t even alive when these were hits, it’s kind of a joke.”

The Guess Who were one of the most successful and celebrated bands in Canadian history. The band enjoyed its most fruitful period in the late 1960s and early 1970s, releasing the popular album American Woman and recording hits like the album’s title traqck alongside “These Eyes” and “No Time.” Bachman and Cummings were the songwriters on most of the band’s tracks. Bachman left at the height of the band’s fame in 1970 and founded the popular group Bachman-Turner Overdrive. Cummings left to pursue a solo career in 1975, at which point he said the group disbanded. 

The Guess Who’s original lineup of Cummings, Bachman, Kale, and Peterson played several reunion shows for more than three decades. According to the suit, while Kale played several reunion shows in the 1980s and another show in the early 2000s, he was removed from the band’s 2000-03 reunion tour just before it began. 

While infringement isn’t a listed claim in the suit, the dispute itself stems from a bitter decadeslong trademark issue. Kale, having left the group in 1972, formed new lineups of the band by 1977, two years after the Guess Who’s best-known era ended when Cummings left. Evidently, the Guess Who had never filed any trademarks over their name throughout their tenure, and in 1986, Kale filed a request and got the rights to the name himself. 

As the suit alleges, Kale “falsely misrepresented to the United States Patent and Trademark Office, among other things, that The Guess Who was first used in commerce for entertainment services in November 1977. But by that point, the Original TGW — which used the mark exclusively and continuously from 1965 through 1975 — had already disbanded.”

Cummings and Bachman claim to Rolling Stone that they recall Kale asking about using the name to perform with fellow Guess Who members Donnie McDougall and Kurt Winter in the 1970s, and that they were busy with their own projects at the time, but that they’d never spoken with Kale about trademarks. 

“The way Kale put it was he wanted to use the band’s name for a while. Randy was with BTO and I was carving out a solo career, so we both had moved on by then,” Cummings says. “We thought Kale playing with Donnie and Kurt, it wasn’t really the Guess Who, but it’s not a completely fake thing. Never was there a sniff in that conversation about him trademarking the name, never ever.”

Kale had organized his own tours with the band with a heavily rotating lineup from the 1980s onward, and by the late Eighties, Peterson had joined them. By 2005, per the suit, Kale signed the rights to the Guess Who trademark to partnership between him and Peterson, and the two applied for more trademarks through 2012. Since Kale secured the trademark, the band released several albums, among them 2023’s Plein D’Amour. 

Burton Cummings performs at New York's Sony Hall on Nov. 18, 2018. BOBBY BANK/GETTY IMAGES

By 2016, Kale had retired from the band, leaving Peterson as the sole original member left. As Cummings and Bachman allege, Peterson plays infrequently with the band, leaving some shows with not a single original Guess Who member. Legacy rock bands touring with just a small link to their glory days is common on the nostalgia circuit, but Bachman and Cummings say having just the original rhythm section without the key songwriters onstage — or more notably, no one at all from the original group — is extreme. 

“It’s really tainted our legacy; it’s tarnished it,” Bachman says. “[Peterson] can be replaced by a drum machine; you can’t replace Burton Cummings’ voice — it’s the greatest rock voice out of Canada. My guitar playing was a one-of-a-kind thing I developed as a kid in Winnipeg. You can’t replace that, and if you do, why would you want to replace it when you can have the real thing?”

Cummings similarly says the band couldn’t legitimately call themselves the Guess Who with no members beyond Peterson. “He’s just the drummer; he didn’t write the songs. The only song Kale and Peterson are listed on is ‘American Woman,’ and that’s because it was the hippie days and the song was improvised onstage, so we thought, ‘We did it onstage, let’s put their names underneath.’”

Along with using the original band’s images and recordings to advertise shows, Bachman and Cummings allege that the defendants replaced the original band’s pictures on streaming services including Spotify and Apple Music with the new group “for the purpose of implying that the Cover Band is the Original TGW in an effort to boost the Cover Band’s ticket sales for live performances and to give the false impression that Plaintiffs are performing as part of the Cover Band or have an affiliation with the Cover Band.

“These artist pages intermingle music by the Original TGW with music by the Cover Band, and Defendants in some cases replaced photographs of the Original TGW members with photographs of the Cover Band’s members to further sow confusion that they are the same as the Original TGW,” the suit alleged. “This intermingling of music and use of the Cover Band’s photographs creates the false and misleading impression that the music all comes from the same source.”

While not listed in the suit, an attorney representing Cummings and Bachman tells Rolling Stone that the new band allegedly failed to obtain proper licenses over the Guess Who’s music that Cummings wrote, which is overseen by his music publisher Shillelagh Music. The attorney said they were exploring a separate potential claim on those allegations as well.

The suit points to several ads the band shared online for upcoming shows in 2023 and 2024, alleging that the group “impliedly attributes to the Cover Band many of the Original TGW’s hit songs, such as ‘Shakin’ All Over’ and ‘American Woman,’ despite the fact that members of the Original TGW originally wrote, recorded and released those songs.”

The band further alleged that old pictures the band shared on its Facebook page that included members of the original Guess Who “implied that Plaintiffs and other members of the Original TGW are involved with the Cover Band.” The suit shared several screenshots from Facebook of fans who said they felt “duped” over the new band. 

Cummings and Bachman say they hope to resolve the issue and get back in control of their musical legacy. “The ideal solution is that Peterson says he’ll retire and we pay him a percentage off the top, and we can lease the name forever or we buy it outright and we’re free to go on,” Bachman says.

“They should start calling themselves a cover band,” Cummings says. “The first thing they have to do is stop implying that they are the original band. They have to stop implying that they’re the guys that made the records. We’ve sent so many cease and desists, and now we’re taking action because they basically give us the finger.”

ROLLING STONE: ‘Fake Bullshit Shows’: Guess Who Co-Founders Sue Ex-Bandmates

Are Major Labels Cooling On Viral Artists?

After years of paying big for songs going viral on social media, labels' strategies may be shifting.

BY ELIAS LEIGHT

On Feb. 4, the rapper Superstar Pride posted a 19-second clip to TikTok of a somber song called “Painting Pictures.” He was basically unknown — with less than 1,000 on-demand streams in the U.S. in January, according to Luminate — but TikTok is famous for its ability to help newcomers attract eyeballs. The unadorned clip, just a rapper and a microphone marooned on a tennis court, quickly passed 1 million views on the app, and the week ending Feb. 9, on-demand streams of “Painting Pictures” leapt from negligible to over 130,000. Pride posted another popular video eight days later; the following week, on-demand streams ballooned to more than 4 million.

“There was this crazy conversion to streaming,” says one senior label executive. “[Pride] made the rounds; every label was talking to him.” But in the end, the rapper announced that he was staying with United Masters, which initially distributed the single.

Some artists prefer the independent route. “[Superstar Pride’s success] is just another example of an independent artist finding tremendous success without the need to give up his rights… to a record company,” United Masters’ Steve Stoute told Billboard in March. (The rapper’s path was also complicated by the fact that the Faith Evans sample underpinning “Painting Pictures” wasn’t cleared initially.) Still, some in the music industry saw this episode as a demonstration of the major labels’ more cautious approach to viral phenomena. 

“Three or four years ago, if that bidding war had happened, it undoubtedly would have come to fruition,” the senior executive says — somebody would have made the rapper an offer that was too big to turn down. In 2023, however, “some labels are disillusioned with their viral pickups,” according to one music attorney who spoke on the condition of anonymity. “There have been a lot of losses. Buyers are going to be a little more deliberate.”

For several years, the mainstream music industry appeared fixated on signing acts with viral momentum. During interviews, executives described the process of combing through heaps of song and artist data from streaming and social media platforms, especially TikTok, identifying tracks with hockey stick graphs — numbers racing up and to the right — and scurrying to lock in a deal before their competitors. Privately, some expressed surprise that their job seemed similar to stock trading, while others criticized this signing strategy as basically buying up market share but foregoing the tough work of artist development.

Labels have been aware of social media’s power to drive wild surges of interest in songs for more than a decade — at least since Psy‘s “Gangnam Style” in 2012 and Baauer‘s “Harlem Shake” in 2013, if not before. In the years since, social media and streaming platforms have become far more potent, and labels invested heavily in honing their research, hiring data whizzes to develop tools that scrape these platforms top to bottom.

Every big label had access to the same pool of information from the social media partners, more or less, so speedy outreach to artists was essential. Even so, bidding wars were common. Especially in 2019, 2020 and 2021, “it felt like every single day another artist signed a deal that was a gazillion dollars,” says another music industry lawyer who requested anonymity to speak candidly. And in the mad rush to beat out the next label, the song or artist being signed sometimes seemed secondary to the data. “People are spending huge on sound effect records,” one senior executive grumbled in 2020. 

The checks were big, but so were some of the hits — none more so than Lil Nas X’s “Old Town Road,” an early beneficiary of a TikTok craze that went on to become the longest-running No. 1 in Billboard Hot 100 history. Still, even with a massive supply of data, forecasting the future remained notoriously difficult. Months of robust streaming for one single may say nothing about the fate of the artist’s follow-up. 

Despite artists’ and labels’ best efforts, it’s now standard to hear that engineering a trend on TikTok is about as likely as buying the winning lottery ticket from the local corner store. And it’s a lottery that appears to have diminishing returns: Viral trends in 2022 did not translate to streaming platforms as effectively as they did in 2020. “All you can do is drop music consistently — and pray,” says another senior executive at a major.

Taking these factors into account, entertainment attorneys say the industry is  starting to look more carefully at viral phenomena. “There’s a lot of viral stuff now that doesn’t get as much attention as it did a year or year-and-a-half ago,” says Leon Morabia, an associate at Mark Music and Media Law. “A lot of things that should’ve been signed to single deals, labels signed to record deals, and they ended up having to replicate the success and it was virtually impossible. And so they ended up with all these artists on their rosters that they had to service that weren’t actually more than a song. It was bad.”

“The market has been correcting,” adds Helen Yu, founder of the music law firm Yu Leseberg. Labels “are backing off in terms of just chasing a number. At some point, it’s coming back to recognition of talent.”

That could be why music lawyers are noticing a new set of behaviors. “For a while there was a lot of signing going on sight unseen,” Morabia says. (The pandemic temporarily made this a necessity, but the need for speed meant the practice continued.) “I see a return to wanting to meet artists in person,” Morabia continues. “I’m hearing questions — ‘Can we meet the kid?’ ‘Can you send us the unreleased music?’ — much more than I did before.”

John Frankenheimer, chair of the music industry practice at Loeb & Loeb, is a veteran lawyer who jokes he’s “been doing this since dinosaurs ruled the earth.” “Opportunities like this always create a frenzy because people are curious to see how they can grasp the latest lightning rod,” he says. “Then everybody has to take a deep breath and start looking at this stuff a little more closely.”

BILLBOARD MAGAZINE: Are Major Labels Cooling On Viral Artists?

Artist & Repertoire Registry Interview with Helen Yu

Link: THE MUSIC BUSINESS REGISTRY

Why Spotify and Apple Music haven't pulled Kanye West's songs

“Is there an actual legal reason to do a takedown on his music? I don’t think so. The hate speech is not in his music. You don’t like this person? Don’t listen to his music. Don’t support him. Don’t let him make money.”

HELEN YU, ESQ

BY WENDY LEE, STAFF WRITER / OCT. 26, 2022 A week after Endeavor Chief Executive Ari Emanuel called for businesses to cut ties with the artist formerly known as Kanye West after his antisemitic remarks, companies such as Adidas and the Gap stopped working with him. But others, including streamers Apple Music, Spotify and Amazon Music, still feature Ye’s music on their playlists. Apple Music and Tidal, which also streams West’s music, did not respond to a request for comment. Amazon Music declined to comment. But industry analysts say the decision to take down Ye’s music is complicated by several factors, including contract requirements streamers may have with record labels and publishers, free speech considerations and whether it is appropriate to take action against an artist’s behavior outside of their music.

LA TIMES: Why Spotify and Apple Music haven't pulled Kanye West's songs