Real Earth, Wind & Fire Sues Fake Earth, Wind & Fire for Trademark Infringement, Deceiving Fans
The rights holders of funk legends Earth, Wind & Fire have sued the company behind a competing Earth, Wind & Fire act, accusing them of copyright infringement and trademark dilution that they claims has resulted in overall confusion and disappointed fans.
Earth Wind & Fire IP, LLC — the rights holder of the band’s trademarks following the death of founder Maurice White in 2016 — filed a lawsuit against Substantial Music Group and Stellar Communications Monday in a U.S. District Court in Miami, claiming that the latter falsely marketed their Earth, Wind & Fire legacy act as the real thing and not, essentially, a cover band.
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As the lawsuit obtained by Rolling Stone explains, there are currently two Earth, Wind & Fire acts on the touring circuit: The real version featuring longtime, Rock Hall-inducted members Verdine White and Philip Bailey — this is the EWF who announced a co-headlining tour with Lionel Richie — and Earth, Wind & Fire Legacy Reunion, which is composed of unnamed “former members” of the long-running funk group.
“Get swept up in the musical whirlwind & re-live the glory days under the Maurice White-led era of EWF as Legacy Reunion reunites former members of the EWF family to continue the tradition now Spanning 5 decades,” Substantial Music Group, which also operates the Billy Joel Band alumni act The Legends of 52nd Street, writes of the Earth, Wind & Fire Legacy Reunion.
While it’s legal for cover bands and tribute acts to function, the lawsuit argues that this “Legacy Reunion” illegally used the band’s copyrights — including their well-known “Phoenix” logo, word mark, Egyptian iconography and even photos of the “real” EWF members — to promote their concerts, tricking fans into thinking the shows were for the actual Earth, Wind & Fire.
“Beginning in about 2019, Defendants hired a few musicians who previously had played with the real Earth, Wind & Fire as side musicians for brief periods up to three decades previously, along with other musicians who had never played with Earth, Wind & Fire, to perform songs that the real Earth, Wind & Fire made famous,” the lawsuit states.
“To increase ticket sales to these concerts, Defendants hatched a scheme to falsely imply in advertising that this new group was the real Earth, Wind & Fire. Defendants did this to benefit from the commercial magnetism and immense goodwill the public has for Plaintiff’s ‘Earth, Wind & Fire’ marks and logos, thereby misleading consumers and selling more tickets at higher prices to shows Defendants promote than would be sold if Defendants honestly advertised who was rendering these performances.”
Adding to the confusion, the lawsuit alleges, is that some ticketing sites didn’t delineate from the two separate Earth, Wind & Fires, combining their respective tour dates into one itinerary.
“Clicking on the links to the well-known ticketing companies shown on the first page of that Google listing reveals further infringement of Plaintiff’s trademark rights,” the lawsuit states.
“For example, the ‘Stubhub’ ticket purchase page uses an image of the three original members of Earth, Wind & Fire who currently tour with and lead the band, and whose images are used to promote, the real Earth, Wind & Fire musical group, and it purports to offer tickets and answer questions about how to get tickets to nearby ‘Earth, Wind & Fire’ concerts. However, the ticket listing combines concerts by the real Earth, Wind & Fire with the band Defendants’ promote, and the tickets offered for concerts by the band Defendants promote have nothing to do with the real Earth, Wind & Fire.”
The 41-page lawsuit includes complaints EWF fans made on social media after accidentally attending a “Legacy Reunion” concert and thought they were paying for the real thing.
“I attended the EWF legacy reunion in Pensacola Florida in hopes of seeing Philip Bailey, Verdine White and others from the original band. Their pictures are on the advertisement, posters, or whatever,” one fan complained. “The impression of Reunion would be original band members from various years. Why is it misleading? The pictures should be removed from advertisement. The details read friends and family or something like that.”
Another fan wrote, “I bought tickets to see the Earth Wind and Fire concert and attend on last night. This was not Earth Wind and Fire. NO Philip Bailey or Verdine White. It was just a band playing Earth Wind and Fire music. I purchased 3 tickets and I was very disappointed. It was truly false advertisement. I want my money back!!!!! I paid to see Earth Wind and Fire with Philip Bailey and Verdine White.”
A rep for the Philip Bailey-led group declined to comment on the lawsuit. A rep for Stellar Communications did not reply to a request for comment. Richard Smith, the founder of Substantial Music Group, called the lawsuit “disappointing news to us.” “It’s surprising that a corporation founded by a soul singer would do something so soulless,” Smith tells Rolling Stone. “We’re proud to be alumni of the musical group Earth, Wind & Fire and will successfully defend against this greedy corporate attempt to erase us. In the meantime, we’ll continue doing what we love, making music and entertaining people.”
In addition to an immediate cease-and-desist on all copyright-infringing promotional materials, the lawsuit also seeks “all revenues derived from Defendant’s promotion of its ‘Earth Wind & Fire Legacy Reunion’ and ‘Legacy Reunion’ concerts and performances” as well as “a monetary judgment reflecting its compensatory and general damages at trial, or in the alternative, statutory damages.”
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