The State of New Jersey has joined the movement to ban imposter doo-wop performers.
Let us assume, for a moment, that doo-wop rip-offs are a problem of pressing public importance. Let us also assume that the accused performers in question own the right to perform under the trademark (or service mark) in question, that is, the name of the group, as a matter of federal law, and that by virtue of compliance with federal trademark law, there is no actionable likelihood of confusion. (If there were, of course, trademark suits would have proliferated like hotcakes by now, judging from the howls of protest emanating from “authentic” doo-woppers.)
Then:Â In the unlikely event that the public authorities charged with enforcing this new state “consumer protection” law actually do try to enforce it, under what scenario is the statute not preempted?
I put “consumer protection” in quotation marks to highlight the notion that someone is being protected here, but it isn’t the consumer. Bowser (above left) can’t sue Bowser (right). Can he?
You’re right legally, in that the law would be preempted and even perhaps considered a violation of privileges & immunities. (Implicating a right to work or earn a living.)
But as a policy matter, while I tend to be pretty hands-off and libertarian about this kind of thing, these pseudo-groups really irritate me. Almost as much as the Mike Love “Beach Boys.” The Misfits did a “reunion” without Danzig. I once saw the “Specials” and it was only one original Special, and not a vocalist. Lame. If I had known that it wasn’t really the original band, or even a good chunk of them, I would not have gone. Am I supposed to do research every time I go see an older band to make sure it’s not a rip-off?
This is a case where the nuances of trademark law create confusion, rather than dispel it.
I bet opinions on this track opinions on food labelling. I’m perfectly fine with it being categorically illegal to call something “parmesan” that is not from Parma. Call it “Parmesan-style.” Similarly, these bands should be able to use the word “Supremes,” say, but not claim to BE the Supremes. Say “New Jersey’s Motown Masters perform the music of The Supremes!” or something.
So here’s an honest question from someone who has no experience going to these concerts: Why do people go?
One might think, and I think that TM law implicitly presumes, that people go to hear the music. A la Justice Scalia in the Dastar case: No one goes because of the identity of “the author” (the singer/the band); people go because they want to hear “the work.”
Sponsors of truth-in-music laws, and jhn’s comment, suggest that this is wrong. People go not to hear the music, or not just to hear the music, but to see the people themselves. Attending these reunion concerts isn’t really about “the work”; it’s a form of celebrity worship. Would people buy tickets to hear Sha-Na-Na (the “true” Sha-Na-Na) if SNN were singing the Barney theme song? Perhaps so.
In that case, the right baseline isn’t trademark law; it’s right of publicity law. And since there is no federal right of publicity law (and that’s a good thing, too), states are free to make up all kinds of publicity statutes on their own. And truth-in-music laws are a backdoor sort of publicity statute.
I don’t think that this changes the outcome of a legal analysis, but it means that the statutes themselves make a bit more sense.
If I just wanted to hear “the work,” I could go see any old cover band. In the case of these faux-bands, usually the quality isn’t what you would expect were the band the original.
But even if the musicianship were fine, the particular playing style and vocal tone of whatever decent musicians are performing will not be the same as the original artists. Pop music is not the same as classical music. Sometimes a song only really works because of the peculiar vocal style of the singer. “Bad” singers often do quite well in rock and pop music. Whiny, gravelly, and breathy voices all have their place. I want to hear what I am familiar with. As far as it goes, I generally only go to see music that I already know and love live. I discover new bands and works through recordings.
I agree with Mike above that the legal analysis is a separate issue. My own particular tastes shouldn’t be the basis of the law. But I have a feeling that my preference in this particular matter is pretty widespread.
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