Original Band Members Retain 'The Commodores' Name
Entertainment Law columnists Michael I. Rudell and Neil J. Rosini write: When a band name retains its value notwithstanding changes in band personnel, a recurring legal question arises: Who among the band members retains the right to continue performing under the name of the original band?
February 02, 2018 at 02:40 PM
8 minute read
Nostalgia-soaked fans who crave to hear performances of silver-maned musicians on tour or on public television during pledge week prove that the names of at least some 50-year-old bands still have value. But while the popularity of a band's name might endure, the original performers might not. Over the decades some die, leave to pursue solo careers, or simply find something else to do. Substitutes for original band members in still-popular groups often perform as members for as long or longer than the founders.
When a band name retains its value notwithstanding changes in band personnel, a recurring legal question arises: Who among the band members retains the right to continue performing under the name of the original band? The question has particular significance for founding members who might feel a stronger entitlement than those who came after. The answer to that question depends on details such as when band members came and left and whether or not the band had an agreement (preferably written) that addressed ownership and use of the group's name in anticipation of those comings and goings.
The Grammy-Award winning blues, funk and soul band known as “The Commodores,” was formed 50 years ago. During the 1970s, it released over 40 albums and numerous hits including “Three Times a Lady,” “Easy,” “Brick House,” and “Too Hot ta Trot.” A dispute arose when one founding member, Thomas McClary, began using the name in 2013 to describe his then-current band while two other “original” members continued to perform as “The Commodores” with other musicians. Last month, the Court of Appeals for the Eleventh Circuit resolved the dispute against McClary in a 50-page decision. (Commodores Entertainment Corp. v. Thomas McClary, Fifth Avenue Entertainment, No. 16-15794, Jan. 9, 2018.) The result hinged on “two independent but mutually reinforcing reasons”: Common law trademark rights belonged to the evolving group that continually performed as “The Commodores” and several contractual agreements through the years contemplated joint but not several ownership of the group's marks.
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