The Guess Who founding members Burton Cummings and Randy Bachman have sued fellow original members Jim Kale and Garry Peterson as well as the band itself, accusing them of misleading fans to believe that the current iteration of the group — which Bachman and Cummings have labeled as “little more than a cover band” — is the original Guess Who.
In a federal suit filed in Los Angeles on Monday and obtained by Rolling Stone, Bachman and Cummings allege that the current lineup — where Peterson is the only current member who was also in the band’s classic era — has used the band’s name, photos of the original lineup and recordings that Bachman and Cummings performed on “to give the false impression that Plaintiffs are performing as part of the cover band.”
“They’ve taken mine and Randy’s history, the history of The Guess Who, and stolen it to market their cheap ticket sales in their fake bullshit shows,” Cummings tells Rolling Stone. “It takes away everybody’s legitimacy.”
The counts listed in the suit are false advertising, unfair competition and violation of right of publicity, and Cummings and Bachman are seeking as much as $20 million in damages.
Bachman and Cummings say they’ve struggled with the problem for years, but that it has further escalated in the past two years since the pandemic ended and the band hit the road again. Bachman says that he and Cummings — who plotted a tour together before the pandemic in 2020 — have wanted to tour as The Guess Who but that the dispute has made that impossible.
Attorneys for Kale and Peterson did not immediately reply to a request for comment, but in a 2012 article in the Winnipeg Free Press, Kale said that “Cummings signed off on the name in 1977… and he hasn’t stopped his pissing and moaning ever since,” he said. “What the hell do you think I was going to do, start a scrapbook? Here I was with a whopping Grade 10 education and I don’t have a trade and I’m too old for a paper route. I gotta make a living.”
The publication further reported that Kale said he’d give the name back if Cummings and Bachman paid him and Peterson. “I’ll have a band of trained monkeys out there just to piss him off,” he said at the time. “I’m prepared to be that petty… I’m really, really sick of it. I’d love to take the high road, but I’m not going to. I’m his karma.”
Cummings sent cease and desist letters to Guess Who manager Randy Erwin in April and May of this year, according to the suit, and he was allegedly told they would take immediate action, though that apparently didn’t happen. Cummings sent a separate cease and desist letter to the band’s attorney earlier this month and hadn’t gotten a response, per the suit.
“It’s been going on for a long, long time, and we hear from fans who say they spent money on tickets and [Cummings and I] weren’t there,” Bachman tells Rolling Stone. “Enough is enough. I get my kids seeing these ads asking me if I’m playing Park City, Utah next week. The fans are getting ripped off over and over, and Burton and I lose because we can’t tour the Guess Who even though we want to. We wrote the music for this band and want to give it to the fans. The clones that are up there weren’t even alive when these were hits, it’s kind of a joke.”
The Guess Who were one of the most successful and celebrated bands in Canadian history. The band enjoyed its most fruitful period in the late 1960s and early Seventies, releasing the popular album American Woman and recording hits like the album’s eponymous single alongside “These Eyes” and “No Time.” Bachman and Cummings were the songwriters on most of the band’s tracks. Bachman left at the height of the band’s fame in 1970 and founded the popular group Bachman-Turner Overdrive. Cummings left to pursue a solo career in 1975, at which point he said the group disbanded.
The Guess Who’s original lineup including Cummmings, Bachman, Kale and Peterson played several reunion shows for more than three decades. According to the suit, while Kale played several reunion shows in the 1980s and another show in the early 2000s, he was removed from the Band’s 2000-2003 reunion tour just before it began.
While infringement isn’t a listed claim in the suit, the dispute itself stems from a bitter decades-long trademark issue. Kale, having left the group in 1972, formed new lineups of the band by 1977, two years after the Guess Who’s best-known era ended when Cummings left. Evidently, the Guess Who had never filed any trademarks over their name throughout their tenure, and in 1986, Kale filed a request and got the rights to the name himself.
As the suit alleges, Kale “falsely misrepresented to the United States Patent and Trademark Office, among other things, that The Guess Who was first used in commerce for entertainment services in November 1977. But by that point, the Original TGW — which used the mark exclusively and continuously from 1965 through 1975 — had already disbanded.”
Cummings and Bachman claim to Rolling Stone that they recall Kale asking about using the name to perform with fellow Guess Who members Donnie McDougall and Kurt Winter in the 1970s, and that they were busy with their own projects at the time, but that they’d never spoken with Kale about trademarks.
Burton Cummings performs at New York’s Sony Hall on November 18, 2018.
Bobby Bank/Getty Images
“The way Kale put it was he wanted to use the band’s name for a while. Randy was with BTO and I was carving out a solo career so we both had moved on by then,” Cummings says. “We thought Kale playing with Donnie and Kurt, it wasn’t really the Guess Who, but it’s not a completely fake thing. Never was there a sniff in that conversation about him trademarking the name, never ever.”
Kale had organized his own tours with the band with a heavily rotating lineup from the 1980s onward and by the late Eighties, Peterson had joined them. By 2005, per the suit, Kale signed the rights to the Guess Who trademark to partnership between him and Peterson, and the two applied for more trademarks through 2012. Since Kale secured the trademark, the band released several albums, including their newest record Plein D’Amour as recently as this year.
By 2016, Kale had retired from the band, leaving Peterson as the sole original member left. As Cummings and Bachman allege, Peterson plays infrequently with the band, leaving some shows with not a single original Guess Who member. Legacy rock bands touring with just a small link to their glory days is common on the nostalgia circuit, but Bachman and Cummings say having just the original rhythm section without the key songwriters on stage — or more notably no one at all from the original group — is extreme.
“It’s really tainted our legacy, it’s tarnished it,” Bachman says. “[Peterson] can be replaced by a drum machine, you can’t replace Burton Cummings’ voice, it’s the greatest rock voice out of Canada. My guitar playing was a one of a kind thing I developed as a kid in Winnipeg. You can’t replace that, and if you do, why would you want to replace it when you can have the real thing?”
Cummings similarly says the band couldn’t legitimately call themselves the Guess Who with no members beyond Peterson. “He’s just the drummer, he didn’t write the songs. The only song Kale and Peterson are listed on is ‘American Woman,’ and that’s because it was the hippie days and the song was improvised on stage, so we thought ‘we did it on stage, let’s put their names underneath.’”
Along with using the original band’s images and recordings to advertise shows, Bachman and Cummings allege that the defendants replaced the original band’s pictures on streaming services including Spotify and Apple Music with the new group “for the purpose of implying that the Cover Band is the Original TGW in an effort to boost the Cover Band’s ticket sales for live performances and to give the false impression that Plaintiffs are performing as part of the Cover Band or have an affiliation with the Cover Band.
“These artist pages intermingle music by the Original TGW with music by the Cover Band, and Defendants in some cases replaced photographs of the Original TGW members with photographs of the Cover Band’s members to further sow confusion that they are the same as the Original TGW,” the suit alleged. “This intermingling of music and use of the Cover Band’s photographs creates the false and misleading impression that the music all comes from the same source.”
While not listed in the suit, an attorney representing Cummings and Bachman tells Rolling Stone that the new band allegedly failed to obtain proper licenses over the Guess Who’s music that Cummings wrote, which is overseen by his music publisher Shillelagh Music. The attorney said they were exploring a separate potential claim on those allegations as well.
The suit points to several ads the band shared online for upcoming shows in 2023 and 2024, alleging that the group “impliedly attributes to the Cover Band many of the Original TGW’s hit songs, such as “Shakin’ All Over” and “American Woman,” despite the fact that members of the Original TGW originally wrote, recorded and released those songs.”
The band further alleged that old pictures the band shared on its Facebook page that included members of the original Guess Who “implied that Plaintiffs and other members of the Original TGW are involved with the Cover Band.” The suit shared several screenshots from Facebook of fans who said they felt “duped” over the new band.
Cummings and Bachman say they hope to resolve the issue and get back in control of their musical legacy. “The ideal solution is that Peterson says he’ll retire and we pay him a percentage off the top and we can lease the name forever or we buy it outright and we’re free to go on,” Bachman says.
“They should start calling themselves a cover band,” Cummings says. “The first thing they have to do is stop implying that they are the original band. They have to stop implying that they’re the guys that made the records. We’ve sent so many cease and desists, and now we’re taking action because they basically give us the finger.”