For the past six months, Burton Cummings, founding singer and songwriter of classic rock group the Guess Who, has been in a bitter legal dispute to wrest control of his old band’s legacy. Now, he’s adopting an aggressive and relatively unheard of approach to make that happen: giving up on certain royalties so the band can’t play his songs.
As Rolling Stone previously reported, Cummings and original Guess Who guitarist Randy Bachman sued the current iteration of the Guess Who (as well as the band’s original drummer and bass player Garry Peterson and Jim Kale) last October, alleging that the group that currently holds the Guess Who trademark is “a cover band” using the original group’s recording in ads “in an effort to boost the Cover Band’s ticket sales for live performances and to give the false impression that Plaintiffs are performing.”
That case is still ongoing, and a federal judge denied the band’s motion to dismiss the founders’ suit earlier this week. But as the suit continues, Cummings has taken a nuclear action, terminating the performing rights agreements for all the Guess Who songs he wrote, removing the copyright protections that allow the band (or anyone else) to perform hits like “American Woman” “These Eyes” and “No Time” at a concert. In effect, he shot himself in the foot to try to shoot the band in the face.
“I’m willing to do anything to stop the fake band; they’re taking [Bachman and my] life story and pretending it’s theirs,” Cummings tells Rolling Stone. “They’re not the people who made these records and they shouldn’t act like they did. This doesn’t stop this cover band from playing their shows, it just stops them from playing the songs I wrote. If the songs are performed by the fake Guess Who, they will be sued for every occurrence.”
Cummings’ strategy is both very aggressive and particularly rare. Two music attorneys with no affiliation to the case tell Rolling Stone they’d never seen such a strategy before. Cummings’ attorney Helen Yu spent several months working to get the license properly terminated. She adds that part of why it’s so unheard of for artists to consider such a strategy is that often, writers don’t own the publishing, which is required to pull both ends of the license.
“Not a lot of artists are both the writer and the publisher on their songs, and Burton Cummings fortunately is, so this is a very rare case where the artist can take this action,” Yu says. “And I think this situation shows the direct nexus between their false advertising and who they say they are.”
The move is focused on agreements set through groups called performing rights organizations (PROs). The termination targets all the venues the band would play. Almost every concert venue in the country has blanket agreements with various PROs such as BMI and ASCAP, who collect royalties on behalf of songwriters for the public performances of their works. If a venue has licensing agreements in place, the venues’ artists are free to cover any song from the PROs’ repertory.
But when Cummings and his publishing company Shilelagh Music terminated their performance agreement with their PRO, they removed the venues’ permission to house any performances of the songs Cummings wrote. Cummings’ counsel sent a note to the band’s lawyers earlier this week explaining that as of April 1, “none of the venues in which The Cover Band is currently scheduled to Perform possess the requisite license needed to publicly perform” Cummings’ songs, and that “Should the individual members of the Cover Band publicly perform any of Shillelagh Music’s Compositions, Shillelagh Music intends to institute legal action to protect its copyright interests.”
The strategy, to the group’s chagrin, seems to be working, at least for now. Two shows were canceled over the weekend, with the Barbara B. Mann Performing Arts Hall in Cyprus Lake, Florida announcing that the show was canceled “due to an unforeseen issue with the music licensing.” The Sunrise Theatre in Fort Pierce, Florida similarly made a last-minute cancellation Wednesday night, also citing the licensing dispute.
By Thursday morning, the Florida Theatre in Jacksonville, the Saenger Theatre in Mobile, Alabama, and the Peabody Auditorium in Daytona Beach, Florida — who would’ve hosted the Guess Who’s next three shows — announced cancellations as well. Tickets for shows beyond those dates remain on sale as of this article’s publication.
An attorney for the Guess Who didn’t respond to Rolling Stone’s request for comment regarding the shows. In December, the band took to social media calling Cummings and Bachmans’ suit “meritless.” In a memorandum, the band argued that “there is no dispute that Defendants lawfully own ‘The Guess Who’ trademark,” and that Consumers who see an ad for a concert by the Guess Who would not reasonably assume that Bachman and Cummings are performing merely because they were in the band many years ago.”
Assuming the group does play the classic era songs at their upcoming shows, both the band and the venue they played at could be on the hook for legal recourse, Cummings and his team tell Rolling Stone.
But like most nuclear options, Cummings’ strategy doesn’t come without the risk of some mutually assured destruction. While terminating the rights complicates the current Guess Who’s performances, it may also significantly hit Cummings’ own earnings. Aside from working with concert venues, PROs also collect royalties from when songs are played on the radio, on TV shows, or even when they’re played in the background at restaurants or shopping malls. With the license terminated, Cummings will likely lose out on seeing those royalty payments. And that’s not just on the versions he recorded, but on covers such as Lenny Kravitz’s Grammy-winning “American Woman” cover.
But Cummings is hoping that what may amount to a flesh wound for him would be a mortal injury for the group he says is tarnishing his legacy. “Yes, I’m going to lose some money, but we’re going to find out what’s worth what. I will not have this fake band going on any longer,” Cummings says. “I’m going to lose some money, but… the name is worthless without those songs. So what are they going to do? ‘Hey, the Guess Who Is playing but we can’t do “Share The Land” or “American Woman,” we can’t do “These Eyes.”’ Nobody’s gonna be there.”
The termination is the latest development in a decades-long dispute that bubbled over with last year’s lawsuit. The fight began when the band’s original bassist Jim Kale obtained the trademark to the Guess Who name in 1986 as the band hadn’t secured the trademark before then. From then on, Kale had organized several tours using the Guess Who name featuring a heavily rotating lineup.
By the late 1980s, the Guess Who’s original drummer Garry Peterson joined the band as well. Kale retired in 2016, leaving Peterson as the only original member left. But he doesn’t play every show, Bachman and Cummings alleged, meaning some shows feature no original members of their band.
Since Cummings filed the suit, he says that the band had removed his access to the Guess Who’s Spotify For Artists page. (When the suit filed last fall, the band’s Spotify page showed a picture of the current Guess Who lineup, but as of publication, it’s now a picture of the old band.)
Cummings also tells Rolling Stone that within the past month, the band’s lawyers said they’d “sue me if I ever even say I was ever in the Guess Who.” “You know how ridiculous this is? What next, can I not say I was born and raised in Winnipeg? That I’m Canadian?”
Cummings didn’t specify how much he expects to lose by foregoing the performance royalties, nor did he say how much of a loss he’s willing to take. But he seems willing to ride it out for the foreseeable future to try and force the band to stop.
“How much is my life’s work worth? You can’t put it in dollars and cents,” he says. “It’s wrong what they’ve done and for years, nobody did anything about it. But we’re doing something now, and this may set some precedents because there are other acts out there that aren’t real either.
“This is about way more than just money, I wouldn’t have pulled the catalog if it wasn’t,” Cummings adds. “This is about the legacy of the songs and the fact that the cover band is doing anything they can to erase me and Bachman from the history of the group. I see advertisements for their shows, and it’s me singing ‘American Woman.’ What they’re doing is fraud because they’re using real songs from the real guys to push their fake band. I’m protecting the name of The Guess Who, I’m trying to protect what we did.”