'Tell the Truth': Truth in Music Advertising Post Tam
Oxford Handbook of Music Law and Policy, Forthcoming
22 Pages Posted: 6 Jan 2019
Date Written: December 20, 2018
There are two morals in David Bowie’s famous song, “Ziggy Stardust.” Ziggy was the fictional leader of the Spiders from Mars, a mythical pop-star persona adopted by Bowie during his meteoric ascent to fame in the early 70s. But Ziggy’s imagined relationship with his fans was too intense. As we learn in the last verse of the song, Ziggy meets a tragic end. “When the kids had killed the man,” sighs the narrator of our tale, “I had to break up the band.” This narrator refers to themselves as a member of the band but holds the power to decide whether the remaining members will continue on without Ziggy. The conclusion? It cannot be done. That is our first moral: sometimes, the group does not survive the loss of a member. And our second is that disbanding, even in difficult circumstances, is a choice. Sometimes groups soldier on with one fewer original member. Sometimes they carry on without an original member at all.
Bowie famously broke up the Spiders from Mars, the band with which he recorded the hit record bearing their name, on stage at the Hammersmith Odeon in July, 1973. The music industry is full of similar tales of acrimonious splits at the height of success as well as dispirited dissolutions after disappointing downturns. Some transitions turn into legal battles, as former members, managers, producers, and record labels assert the right to use the name of the band as a source signifier for ongoing musical pursuits.
This chapter considers in brief how courts in the United States handle trademark disputes over band names. It also analyzes largely forgotten state “Truth in Music” Acts that aim to keep legacy performing groups and their managers honest by requiring them to tour with at least one original recording musician – or identify themselves as tributes, rather than the genuine article. This commitment to “truth” about the origin of these bands seems consistent with the purpose of federal trademark protection to make “actionable the deceptive and misleading use of marks” and “to prevent fraud and deception” in commerce. But two cases recently decided by the Supreme Court of the United States, United States v. Alvarez and Matal v. Tam, suggest that a period of judicial deference to legislative acts preventing lies and protecting trademarks may be at an end. Courts have recently held that longstanding provisions of the Lanham Act violate the free speech clause of the First Amendment. Reconsidering the Truth in Music Acts in light of these cases may help us predict how much of the current trademark regime is likely to be swept away on a rising tide of judicial scrutiny.
Keywords: trademark, First Amendment, Stolen Valor, commercial speech, Brunetti, FUCT, Central Hudson, band, music group, David Bowie, United States v. Alvarez, Matal v. Tam, Beach Boys, Pink Floyd, Boston, New Edition, Vito and the Salutations, Truth in Music, Truth in Music Advertising, Sha-Na-Na, Drifters
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