Earth Wind & Fire accuses ‘legacy’ band of trademark infringement
Maybe if they changed their name to Dirt, Breeze and Flames?
The promoters of an act comprised of one-time side musicians for the band Earth, Wind & Fire are using the funk-and-soul supergroup’s name to mislead consumers into buying tickets for upcoming shows, including one next month in Fort Lauderdale, a federal lawsuit filed in Miami is charging.
Two promoters Georgia-based Substantial Music Group LLC and Indiana-based Stellar Communications Inc. — are named as defendants in the trademark infringement lawsuit filed by plaintiffs Earth, Wind & Fire IP, LLC.
It alleges that since about 2019, the companies hired musicians who played “for brief periods up to three decades previously” as well as others who had never played with Earth, Wind & Fire to perform songs that the real band made famous.
A scheduled April 13 show at The Parker Playhouse in Fort Lauderdale is being billed as Legacy Reunion: Earth, Wind & Fire Alumni. On the popular ticket resale website StubHub, ticket prices range from $100 to $371.
Meanwhile, the official Earth, Wind & Fire is scheduled to perform with Lionel Ritchie at the FLA Live Arena in Sunrise on Aug. 25. Tickets on StubHub for that show start at $72 and top out at $6,899 for floor seats in front of the stage.
The lawsuit says the defendants used Earth Wind & Fire in their name to command higher ticket prices.
“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,” the suit states.
“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.”
Conceived by drummer and bandleader Maurice White, Earth, Wind & Fire incorporated jazz, smooth soul, gospel, pop, rock and roll, blues, folk, African music and disco as it churned out a long list of hits in the 1970s and 1980s, including Shining Star, Boogie Wonderland, Let’s Groove and September.
White died in 2016, leaving ownership of the group’s name and trademarks to his sons. Three original members — Philip Bailey, Maurice White’s brother Verdine White, and Ralph Johnson — continue to tour as Earth, Wind & Fire under license.
Listings on popular ticketing websites, including StubHub, for the Legacy Reunion show use images of the original Earth, Wind & Fire members, while other sites commingle listings for the two acts, the suit claims.
At first the band marketed shows using text and graphics confusingly similar to the authentic Earth, Wind & Fire trademark, logo and Egyptian-themed imagery, the suit states.
After the real Earth, Wind & Fire demanded that the defendants cease and desist their “infringing conduct,” the promoters “changed to
less obvious but nevertheless still confusing uses of the original band’s trademarks in later advertising,” the suit states.
For example, instead of billing the shows as “Earth Wind & Fire Legacy Reunion,” the suit charged they were later titled “Legacy Reunion of Earth Wind & Fire Alumni.” But the words Earth, Wind & Fire were still prominently displayed, according to the complaint, with artwork depicting a blazing sun reminiscent of Earth Wind & Fire’s “I Am” album cover.
Reached by phone, Richard Smith, founder of Substantial Music Group, called the lawsuit’s charges “misleading.” In an emailed statement, Smith said:
“It is sad that a greedy corporation has chosen to use trademark law to attempt to pass judgment on which previous members of Earth, Wind & Fire are worthy of being called alumni of the band and which previous members are ‘fake.’ ”
The statement continued, “I was personally a member of the band for five years and performed on two tours and one album. I’m proud to be an alumnus of the musical group. The corporation’s dismissiveness of my and others’ contributions to Earth, Wind & Fire is hurtful. We will not be erased.”
The lawsuit accuses the defendants of creating confusion among ticket buyers and quoted complaints it says were received by consumers who thought they were paying to see original members.
“I bought tickets to see the Earth Wind and Fire concert and attend[ed] last night,” said one consumer quoted in the suit. “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 !!!!! ”
The lawsuit demands that Substantial and Stellar immediately cease using any of Earth, Wind & Fire’s registered or common law trademarks or anything “confusingly similar thereto” and to deliver an accounting of all revenue derived from promotion of its concerts “for payment over to Plaintiff.”
The suit seeks unidentified damages and attorney’s fees.