A ton of virtual ink has been spilled in recent days over the IP issues surrounding tattoos, Mike Tyson, plastic surgery, and body modification. Â Just in the legal academic blogosphere, see here, Â here, and of course here. Â Perhaps it is time for a different minor topic.
Neither the band nor its music have anything to do with John Elway, football, the Denver Broncos, Â the number 7, Super Bowl losses and wins, a certain “drive” in Cleveland, refusal to play football in Baltimore, a notorious loss to Cal in the Big Game, or anything else that is related to the actual John Elway. Â Elway (the band) are just having a little fun with the name.
So far as I know, Elway (John) does not have any registered rights or other rights in marks related to music.
Additional details here. And more here.
Here is some information about the band.
Most of the comments that I’ve seen come down on Elway (John) pretty hard for being heavy-handed and humorless, but legally speaking, his claim — it would most likely be a right of publicity claim, if he decided to really press the matter — isn’t ridiculous.
There are, of course, some well-known cases in which musicians’ identities were appropriated to sell products.  I wonder how often a musician is alleged to have appropriated someone else’s identity in order to sell music.  That sort of thing is at the bottom of  “Truth in Music” legislation regarding “counterfeit” tribute bands. And solely because this little tiff is taking place in Colorado, I am reminded of last year’s skirmish between two Beatles’ tribute bands, Fab Four vs. Fab 4. The case was filed in Las Vegas, but the defendant was based in Colorado.
But that legislation and the Beatles’ tribute case involve unfair competition. Â The situation here reminds me of the Rosa Parks/OutKast lawsuit, which was eventually settled. Â Elway (John) isn’t concerned about competition. Â I’m not sure what his concern is, other than not wanting his name on this band. Â What if the music were a little more to his taste? Â A band of Broncos fans who play covers of 70s guitar music, the sort of stuff (Doobies, Eagles) that Elway (John) was raised on? Â If *that* hypothetical band called itself “Elway,” would Elway (John) object? Â Would his claim be stronger than the one that he’s highlighted here?
As a matter of the Rogers defense at issue in the Parks case, I think this band is in worse shape than Outkast was. That case (and the Rogers case itself) was about the title of an expressive work. Other cases, particularly in the 9th Circuit, have extended it to expressive content itself. But I don’t think any court has applied it to the name of a band, which is much more analogous to a traditional trademark use. So if it comes down to a Rogers-style defense, I think the band loses – which means it’s probably just a likelihood of confusion/right of publicity case.
My guess is that John Elway’s objection is one-third associational, one-third dilution-related, and one-third reputational. He probably has some concern that folks think that he authorized the band’s use of the name. But he also is probably motivated by the belief that “Elway” has, through his efforts, a strong, singular meaning (despite the fact that he undoubtedly shares the name with hundreds, if not thousands, of other people) that is now being diluted through association with the band. And he also senses (probably quite rightly) that the band’s “tribute” name makes fun of him a little bit.
What’s interesting is that what is possibly getting Elway fired up — the genre of music the band plays — is what should render each of these concerns legally invalid, either because there’s no likely confusion or because the use of the name is punky, ironic commentary.
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