(March 8, 2024). The legendary R&B/pop band Earth, Wind & Fire, which still consists of three members of its classic 1970s/‘80s lineup — Philip Bailey, Ralph Johnson and Verdine White (brother of late founder Maurice) — recently won a lawsuit against a cover band.
The legal battle centered on the group’s trademark and the tribute band’s “deceptive and misleading” marketing tactics which tricked some consumers into believing they were paying to see the real EWF.
The tribute band billed themselves as “Earth, Wind & Fire Legacy Reunion,” with the word “reunion” suggesting that original band members were returning to perform during concerts. Exacerbating matters was the fact that some of the tribute band’s members had actually played with EWF before, but were side musicians who were never officially members of the band.
Still, that nuance apparently justified — in the minds of the tribute band at least — that the billing was accurate and appropriate (and legal).
The problem: Earth, Wind & Fire itself is actively touring with Bailey, Johnson and White still carrying the torch. Plus, the rights to the name “Earth, Wind & Fire” are owned by Maurice White’s sons via a holding company and are licensed to the well known group members to continue performing as such.
It was the holding company — Earth, Wind & Fire IP — that filed the lawsuit.
A Miami federal judge ruled in that holding company’s favor and stated, “Regardless of if defendants’ musicians were technically sidemen or members, the advertisement and marketing were still deceptive and misleading as to whether the main (or most prominently known) members of the band would be performing.”
In addition, Judge Federico A. Marino wrote “It is not a far cry to think that an average consumer looking for an Earth, Wind & Fire concert would believe that they could acquire that experience from either plaintiff or defendants,” while citing several angry social media posts and emails from fans who were duped into believing they were seeing the real thing.
This outcome brought to mind a recent debate initiated by a Facebook friend whose post in a music group I belong to – Lost Pop Hits – sparked impassioned responses from members about legacy bands and the willingness to see them perform with few original members remaining or severely diminished showmanship at this stage of their careers.
In that example, the post was about another still-active ‘70s/‘80s band, Foreigner, and a Las Vegas residency they’re doing to the tune of $50-$250 a pop.
Foreigner is one founding member — Mick Jones — away from essentially being a cover band itself (and Jones didn’t sing lead on any of the band’s hit singles back in the day). Comments in the post ranged from “hell no” to “why not” when asked whether people would pay their hard-earned money to see acts who are long past their primes.
One of the responders rightfully pointed out that, in many cases, there are cover bands who are “better at this stage” than the original and that he “had a great time” seeing (the cover band).
I’ve been contemplating this debate for years as members of my favorite groups from the 20th century have one-by-one moved on to that great rock-n-roll beyond or otherwise retired from performing.
When last original Spinner Henry Fambrough passed away earlier this year, it begged this same question. The Spinners are still actively touring (with dates coming up later this month as either opening act for another heritage group, the Commodores, or as part of multi-artist festivals).
None of the Spinners’ former hit-making lead singers — original or otherwise — are still performing, essentially rendering them a cover band. Yet the group, consisting of what are now all replacement members, is able to tour under the name the Spinners… likely because of licensing or trademark rights that have been afforded them as most of the current members were affiliated while founder Fambrough was still alive.
Soul/R&B groups like the Spinners, the Temptations, the Four Tops and Heatwave continue to tour with one or none of the singers that made them popular still remaining. In the latter three cases, all but one of each group’s original members are deceased (with none of the survivors being lead vocalists during their prime).
Even on the pop/rock side, bands like Foreigner and Fleetwood Mac have navigated losses of key members, albeit by taking different approaches. In Foreigner’s case, with primary former lead singer Lou Gramm still alive but no longer with the band, Foreigner still tours.
Fleetwood Mac toured for several years after Lindsey Buckingham suddenly departed in 2018. However, their remaining members have made it clear that they would not continue performing as a band after the death of Christine McVie in 2022.
And it doesn’t always take one’s passing to spell the end of a band’s touring days.
The progressive rock group Pink Floyd officially stopped touring 30 years ago — Rock Hall of Fame members Roger Waters, Nick Mason, and David Gilmore are all still alive — and have since allowed tribute bands to carry on their legacy, one to high acclaim.
A friend recently hipped me to the cover band Brit Floyd, noting that it is one of his favorite bands — tribute or otherwise — to see in concert. After watching a couple of their videos on YouTube, I’d gladly pay to see their show. The Liverpool, England-based Brit Floyd are so highly regarded and authentic-sounding that they have their own Wikipedia page and have received the full blessing of Pink Floyd in carrying on their legacy.
Earth, Wind & Fire — whose first top-40 single “Mighty Mighty” entered the Hot 100 exactly 50 years ago this week — is in a better position than most bands from their heyday. I’ve seen the Elements of the Universe perform at least four times in the post-Maurice White era, and Philip Bailey — their iconic falsetto vocalist — has handled both his and White’s baritone parts for more than three decades now.
But even that won’t be the case forever. Bailey, Ralph Johnson and Verdine White will all be turning 73 this year and it’s not realistic to think that they’ll be touring as EWF for another 20 years.
Their eventual retirement would likely mark the end of EWF as a touring entity, with the band likely taking the route of Fleetwood Mac and leaving tribute/cover bands like the one they defeated in court this week as the only torch-bearers remaining.
So, the question is this: Even if EWF were to have a life after Bailey/White/Johnson, would you go see them? What about their cover bands?
What about the other acts mentioned above or any others in this situation?
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DJRob
DJRob (he/him) is a freelance music blogger from the East Coast who covers R&B, hip-hop, disco, pop, rock and country genres – plus lots of music news and current stuff! You can follow him on X (formerly Twitter) at @djrobblog and on Meta’s Threads.
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