Former Guess Who icons Burton Cummings and Randy Bachman are suing two former bandmates in response to a group of musicians who are touring and recording using the old band’s name.
A false advertising lawsuit filed in federal court in Los Angeles alleges the Guess Who has been using photographs that include Cummings and Bachman to create the false impression that the current version of the band is actually the classic Guess Who lineup.
Being sued are the band’s original rhythm section of bassist Jim Kale and drummer Garry Peterson, who own the Guess Who name. Kale was booted from the band in 1972, but after the Guess Who broke up in 1975, he surreptitiously trademarked the band name and resumed touring with Peterson and other hired musicians as the Guess Who.
Kale retired in 2016, but Peterson and the quasi-cover band are still on the road. This year they released an album, Plein D’ Amour, which incongruously lives on streaming services alongside such classic albums as Share the Land and Wheatfield Soul.
“Randy and I have finally taken a stand,” Cummings, 75, said from his home in Moose Jaw, Sask. “This has gone on far too long.”
Winnipeggers Cummings, Bachman, Kale and Peterson first began calling themselves the Guess Who in 1965. They went on to break big internationally with hits including American Woman, These Eyes and No Sugar Tonight. After Cummings pulled the plug on the band, he went on to enjoy a successful solo career. Guitarist Bachman (who had left the group earlier) had already formed the popular Bachman-Turner Overdrive.
The ownership of the Guess Who trademark itself is not under dispute. The lawsuit claims Kale and Peterson have recently been removing images of Cummings and Bachman from the landing pages of music streaming platforms and replacing them with pictures of the current band. The suit additionally alleges the defendants have been using songs written by Cummings and Bachman to promote the current band without obtaining proper licenses.
“They’re not saying they’re a tribute band,” the 80-year-old Bachman said. “They’re saying they’re us, and it’s a joke.”
Cummings and Bachman sporadically perform as Bachman-Cummings. They seek in excess of US$20-million in damages for false advertising, unfair competition, and violation of right of publicity.
According to Cummings, the nominal Guess Who has not responded to the lawsuit. The band’s U.S.-based manager, Randy Erwin, said in an e-mail to The Globe that the group was in the process of retaining legal counsel.
Though the current Guess Who uses a red maple leaf as part of its logo, the quintet mostly tours in the American Midwest. Peterson, one of the group’s two Canadians, is not always well enough to participate and is replaced by another drummer. Without Peterson onstage, there is no link to the band’s classic lineup.
“I’ve seen the band play in the United States, and while they’re all good players, it’s just not the Guess Who,” said Mark Rashotte, a music promoter who often books classic rock acts in Belleville, Ont. “And, frankly, as a Canadian, I was appalled.”
There is a Truth in Music Advertising Act in the United States that guards against false, deceptive or misleading affiliation related to live musical performance and advertising of events. There is no such legislation in Canada, where classic bands such as Trooper and Toronto tour with no original members in their current lineups. Teenage Head performs without key members Gord Lewis and Frankie Venom, and April Wine tours without its recognizable singer and chief songwriter Myles Goodwyn.
“I have a problem with that,” says Coney Hatch bassist Andy Curran. “Without Myles, can you really call yourself April Wine?”
Coney Hatch, which plays Toronto’s El Mocambo club on Saturday, is a Canadian band from the 1980s that tours with three of its four original members. “I certainly have zero issues with us up there representing the legacy of Coney Hatch,” Curran said.
What is ironic about Bachman’s involvement in the lawsuit against the Guess Who is that he has recently resurrected Bachman-Turner Overdrive with no original members save for himself. The photo on the Takin’ Care of Business band’s website is of the classic lineup. Notices on social media for recent concerts in the United States make no mention of who will be playing in the band currently.
“I’m keeping the flag waving,” Bachman explained. “The fans want to hear it, and we go out and do it.”
It remains to be seen what happens with the suit filed by Bachman and Cummings. “Nobody can stop them from performing our songs, but they cannot continue to market themselves as the Guess Who,” Cummings said. “It’s really sad, and it’s just not right.”