Metallica Sends 41 Page Legal Threat To Canadian Cover Band [Updated]

from the no-tributes-allowed dept

Thu, Jan 14th 2016 8:35am — Mike Masnick

Metallica, in some circles, will always be known as the band that sued Napster and promised to go after the band's own fans that used the platform. For some former fans of the band, nothing the band has done since can redeem it. And I'm assuming the latest move probably won't help much either: various reports note that a Canadian Metallica tribute/cover band called "Sandman" showed up at a gig recently, only to discover a 41 page cease and desist letter from the band's lawyers, claiming that they were unfairly profiting off the Metallica name and logo.

Unfortunately, no one has released the full letter, but one of the band's members, Joe Di Taranto, posted a photo to Facebook of the first page of the letter:

Some in the music press seem to think that the threat is just fine because "would you want someone running around using your likeness and making money off it?" But, that's shortsighted and misleading. First of all, the purpose of trademark is not that no one else can make money off of your marks. If it's being used for nominative use, to directly reference the mark itself, that's perfectly legal. And, given that the whole point of Sandman is to be a Metallica tribute band, it's quite likely that its use of the Metallica brand was nominative.

No one's getting confused. No one thinks that it's actually Metallica. Everyone recognizes what a tribute band is. And the reason they go see and support tribute bands (hell, the reason people create tribute bands in the first place) is because they love and support the original band. None of this is done to be unfair to Metallica, but to celebrate the band, and how does the band react, but with a giant legal threat.

That's pretty messed up.

Update: And... of course, now that the band is getting lots of bad publicity over this, it's suddenly blaming "an overzealous attorney" and insisting that neither the band nor its management had any idea about this. Maybe time to find better lawyers.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: cease and desist, cover band, metallica, sandman, trademark, tribute band

51 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Violynne (profile), 14 Jan 2016 @ 7:44am

Forget the lawsuit. The bigger headline is the fact Metallica is still around.
[ link to this | view in chronology ]
- Anonymous Coward, 14 Jan 2016 @ 9:46am
  
  Re:
  Are you sure Metallica is still around? This could be a zombie band, kept alive by lawyers and IP alone. Their #1 hit, "Brains" is an undead giveaway!
  [ link to this | view in chronology ]
- Anonymous Coward, 14 Jan 2016 @ 12:17pm
  
  Re:
  Yes. Metallica has been apparently been founding somewhere in Canada. Didn't think to look there.
  [ link to this | view in chronology ]
That One Guy (profile), 14 Jan 2016 @ 7:47am

Enjoy the silence
If Metallica doesn't want cover/tribute bands around to keep their music around and introduce it to potential new fans, I say have at it. Let there be no tribute bands, no-one but them playing their music, and let fans instead gravitate towards newer and better musicians.
[ link to this | view in chronology ]
- Anonymous Anonymous Coward, 14 Jan 2016 @ 9:00am
  
  Re: Enjoy the silence
  What do you want to bet that when history shows that Metallica destroyed its own reputation they will cry with loud absurdity that that history should be forgotten?
  [ link to this | view in chronology ]
MadCow (profile), 14 Jan 2016 @ 8:47am

I've already submitted an update to Techdirt regarding this.

You can find the band's update here: https://metallica.com/blog/news/381189/wednesday-night-note
[ link to this | view in chronology ]
- Anonymous Coward, 14 Jan 2016 @ 8:58am
  
  Re:
  Thanks! Excerpt from the linked page:
  
  turns out that we have a very overzealous attorney who sent this letter without our knowledge.
  
  We have a long history of not only enjoying tribute bands, but we started as one. Heck, we even recorded a two-disc album of covers! We will always remember those days and continue to enjoy tribute bands, even inviting them to support us on various tours over the years.
  
  Sandman should file the letter in the trash
  [ link to this | view in chronology ]
- Anonymous Coward, 14 Jan 2016 @ 8:59am
  
  Re:
  serious question
  
  do lawyers have the legal right to send such notices without consulting their clients first.
  [ link to this | view in chronology ]
  - That One Guy (profile), 14 Jan 2016 @ 9:08am
    
    Re: Re:
    Would probably come down to their contract.
    
    A smart person/company/band would want to make sure that before a lawyer sends out anything legal, especially a threat of any sort they have to clear it with them first, but if they were foolish enough to give the lawyer(s) more slack in their leashes, they might very well be able to do something like this on their own.
    [ link to this | view in chronology ]
  - MadCow (profile), 14 Jan 2016 @ 9:19am
    
    Re: Re:
    Also, I wonder if there's a possibility that the management team actually did this. The management team could have told the lawyer to get this done, and then when the backlash happened, denied everything and placed the blame on the lawyer.
    [ link to this | view in chronology ]
    - Anonymous Coward, 14 Jan 2016 @ 12:31pm
      
      Re: Re: Re:
      Then what would be the end game, if in the end, the cover band was told to "file the letter in the trash" by Metallica themselves?
      [ link to this | view in chronology ]
    - niiwe (profile), 17 Jan 2016 @ 1:26pm
      
      Re: Re: Re:
      Well, they claim that "neither we nor our management were aware", so...
      [ link to this | view in chronology ]
  - Anonymous Coward, 14 Jan 2016 @ 2:02pm
    
    Re: Re:
    If not they make for great scapegoats
    [ link to this | view in chronology ]
  - Anonymous Coward, 14 Jan 2016 @ 3:21pm
    
    Re: Re:
    Isn't that kind of what power of attorney means?
    [ link to this | view in chronology ]
Wargazm (profile), 14 Jan 2016 @ 9:03am

the wording in your update is pretty snarky. I see no reason to not take the band at their word: a lawyer thought he was doing his job right, the band walked it back, apologized to the cover band personally, and apparently disciplined the lawyer. What else can they do?
[ link to this | view in chronology ]
- Anonymous Coward, 14 Jan 2016 @ 9:37am
  
  Re:
  Erase two decades of behavior that taught us that sending a legal threat to a cover band is exactly the sort of thing they'd knowingly do.
  [ link to this | view in chronology ]
  - Wargazm (profile), 14 Jan 2016 @ 12:04pm
    
    Re: Re:
    "two decades of behavior." Nonsense. Put the butthurt about Napster aside for one second and think logically about this. Metallica has never taken action against a cover band before. Why would this be anything other than a mistake?
    [ link to this | view in chronology ]
    - AJ, 14 Jan 2016 @ 1:03pm
      
      Re: Re: Re:
      " Metallica has never taken action against a cover band before. Why would this be anything other than a mistake?"
      
      If it is true that they have never taken action against a cover band before, then I would agree with you. Mistakes happen, we should try and be tolerant and give them the benefit of the doubt. I read the update, they seemed very sincere with their apology, my first instinct is to chalk it up to bad judgement on the side of the lawyer. I think the comment they made about sending the lawyer on a permanent ice fishing trip to Alaska was a nice touch.
      
      BUT! If it's not true, and they have indeed gone after other tribute bands after all, .. proceed with the thrashing.....
      [ link to this | view in chronology ]
    - JMT (profile), 14 Jan 2016 @ 3:12pm
      
      Re: Re: Re:
      Given their history, any strong pro-IP stance from Metallica is totally believable. Lawyers act on instructions from their client, not on their own whims. Somebody either told them to do this, or (more likely) they had standing instructions that weren't clear enough in their limits. The band may honestly not have wanted this to happen, but they're not blameless.
      [ link to this | view in chronology ]
- Anonymous Coward, 14 Jan 2016 @ 10:58am
  
  Re:
  If in fact it was the lawyer as they claim, you fire the lawyer. That is what they can do. Cut off one lawyer head and 2 more will show up in it's place.
  [ link to this | view in chronology ]
  - Wargazm (profile), 14 Jan 2016 @ 12:05pm
    
    Re: Re:
    In the update, they essentially said the lawyer had been fired.
    
    True, it was said in a joking manner ("We sent him to Alaska, lol") so perhaps he wasn't actually fired. But no reason to think he wasn't reprimanded at the very least.
    [ link to this | view in chronology ]
    - Anonymous Coward, 14 Jan 2016 @ 4:57pm
      
      Re: Re: Re:
      And how much will Metallica suffer from this backlash?
      
      History tells us the answer is none.
      
      Which means there's no reason not to keep up with the backlash. You don't get to be a douchebag and handwave it saying, "lol the lawyer did it".
      [ link to this | view in chronology ]
- That One Other Not So Random Guy, 14 Jan 2016 @ 3:12pm
  
  Re:
  "I see no reason to not take the band at their word"
  The same band that cried that Napster was killing them while making money hand over fist? That band? The same band where 1/30th (approx) of their revenue comes from album sales?
  -
  Besides... anything past the Black album is garbage. They are not relevant anymore. I believe if it hadn't received so much attention the tribute band would have been forced to stop.
  -
  People are kidding themselves if they think this was a rouge lawyer.
  [ link to this | view in chronology ]
  - klaus (profile), 15 Jan 2016 @ 4:58am
    
    Re: Re:
    "...a rouge lawyer."
    
    +1 funny
    [ link to this | view in chronology ]
Ninja (profile), 14 Jan 2016 @ 9:03am

I never really liked or hated the group (Metallica) and I actually think one or two songs are awesome. But I despise them for their actions in the copyright area. Good thing I don't have any issue living without their music. But what's somewhat shocking is that I know some quite big fans that actively ditched them after getting to know about their actions (I personally do my best to spread the word, but that's a minor detail). I'm glad I did my part in driving people and sales away from them.
[ link to this | view in chronology ]
- Anonymous Coward, 14 Jan 2016 @ 2:24pm
  
  Re:
  Same here, I actually did like their music up until the Black album but after that their music just went downhill to me and then they went all copyright crazy, especially Lars. Because of their extreme views on copyright and the things they've done over the last 20 years because of it I find it really hard to believe that they didn't know what was going on here before the backlash started. Even in that small chance that it was a mistake I don't feel any sympathy for Metallica at all, they've destroyed their own reputation and deserve all the backlash when things like this happen.
  [ link to this | view in chronology ]
  - That One Other Not So Random Guy, 14 Jan 2016 @ 3:12pm
    
    Re: Re:
    "I actually did like their music up until the Black album but after that their music just went downhill"
    Agreed.
    [ link to this | view in chronology ]
Anonymous Coward, 14 Jan 2016 @ 9:11am

I know personally I've stopped going to see all of my favorite bands and artists because I can much more cheaply see their tribute bands instead.

Sure, they usually have little talent. And maybe you have deal without any sort of interesting, expensive visual elements that make live concerts so fun to go. And maybe the crowds don't have as much passion as when seeing the real thing. And yeah, so Connor McGuillicuddys Bar and Grille doesn't have the best sound system or acoustics. And you have to deal with the occasional drunk who who you can hear yelling "play Freebird" between songs.

But other than that it's JUST like seeing the actual band. Now if you would excuse me, I need to go purchase my "Corridor and Barley" tickets for tonight.
[ link to this | view in chronology ]
- That One Other Not So Random Guy, 14 Jan 2016 @ 3:26pm
  
  Re:
  I saw a Rush cover band that was technically as good as the real thing.
  
  Hey man... those 6 silver par cans spray painted black with wrinkled jells just adds to the ambiance.
  
  McGuillicuddys Bar and Grille doesn't have the best sound system or acoustics but damn it if they don't have the best burgers and fries for 6.95, soda included!!! Get that at your mega stadium I tell ya.
  
  The best part is... THEY ACTUALLY PLAYED FREEBIRD!!! YEAH!!! WHOOOO!!! FREEBIRD!!!!
  
  Sometimes... it's better than seeing the actual band and much much cheaper.
  [ link to this | view in chronology ]
Max (profile), 14 Jan 2016 @ 9:18am

Meh...
They were dead to me ever since the Napster thing, they stay dead to me after this - nothing changed. Except the channel, whenever I hear them on the radio, immediately, no exceptions. They say excuses are like asses - everyone has one. Metalliwho...?
[ link to this | view in chronology ]
Anonymous Coward, 14 Jan 2016 @ 9:40am

Morons! Read the Rolling Stones article. Metallica told the cover band to go on and continue covering Metallica's songs since they gave "Sandman" their full blessing.

http://www.rollingstone.com/music/news/metallica-canadian-cover-band-reconcile-over-cease-a nd-desist-letter-20160114

According to "Sandman":

Di Taranto says that Metallica drummer Lars Ulrich called him on Wednesday to apologize and quash the situation. "He gave me and the band his full blessing to continue on as we were," says the musician. "They want us to continue paying tribute to Metallica with their full blessing and approval. We will continue to fly the Metallica flag, loud and proud!!" The band says they will continue using their logo with impunity.

As for the original cease and desist order, Metallica has rescinded the letter. "Sandman should file the letter in the trash," the band says. "Keep doing what you’re doing ... we totally support you! And in the meantime, our attorney can be found at SFO catching a flight to go permanently ice fishing in Alaska."
[ link to this | view in chronology ]
- Mike Masnick (profile), 14 Jan 2016 @ 10:34am
  
  Re:
  Morons! Read the Rolling Stones article. Metallica told the cover band to go on and continue covering Metallica's songs since they gave "Sandman" their full blessing.
  
  You do realize we had updated the post with a link to the Rolling Stone article an hour BEFORE you posted your comment, yes?
  [ link to this | view in chronology ]
  - Wargazm (profile), 14 Jan 2016 @ 11:27am
    
    Re: Re:
    as I said elsewhere...the tone of that update is needlessly negative and cynical. "Oh, of *course* that now that there's backlash, the band is backpedaling hard! But we know the truth, right guys?"
    
    Is there no room in this situation to allow for an honest mistake that was quickly resolved to the satisfaction of every party involved?
    [ link to this | view in chronology ]
    - Anonymous Coward, 14 Jan 2016 @ 11:55am
      
      Re: Re: Re:
      The skepticism stems from Metallica's prior actions.
      [ link to this | view in chronology ]
      - Wargazm (profile), 14 Jan 2016 @ 12:01pm
        
        Re: Re: Re: Re:
        Their prior actions when it comes to cover bands is pretty well documented: they support them wholeheartedly. They've take cover bands out on tour, for example. If I recall correctly, Lars even played a few shows with Beatallica.
        
        There's hundred, maybe thousands of Metallica cover bands. If they really wanted to stomp them out, you'd see stories like this all the time. The fact that you don't means this is a one-time mistake that was quickly resolved.
        [ link to this | view in chronology ]
Anonymous Coward, 14 Jan 2016 @ 9:53am

Regardless of the weird trademark and copyright issues that have surrounded Metallica all these years, I'm still looking forward to their next album, The Eagle's Greatest Hits.
[ link to this | view in chronology ]
- Anonymous Coward, 14 Jan 2016 @ 11:19am
  
  Re:
  You took the words right out of my mouth :D
  
  The Eagles have been fighting for decades to repeal mandatory licensing.
  
  Interestingly, as a result, even though just about everyone knows at least one Eagles song, very few people actually know about The Eagles anymore.
  
  I have no clue why someone would want to bask in obscurity like that.
  [ link to this | view in chronology ]
Chris ODonnell (profile), 14 Jan 2016 @ 10:06am

This is the most press Metallica haas had in years. Coincidence?
[ link to this | view in chronology ]
Yes, I know I'm commenting anonymously, 14 Jan 2016 @ 10:12am

Would they support a three-strikes program?
... Strike Two.
[ link to this | view in chronology ]
Anonymous Coward, 14 Jan 2016 @ 10:14am

I prefer "expand" to "read more".
[ link to this | view in chronology ]
Anonymous Coward, 14 Jan 2016 @ 11:23am

Internet Sandman
I was a fan of Metallica but now the only thing I ever think of when I hear Metallica is Johnny Crass's "Internet Sandman" Parody.

https://www.youtube.com/watch?v=iNLw6XFOwCE

This is my favorite part of the song:

Now I lay Lars down to sleep
I pray his copyrights to keep
If he gets poor before he wakes
He'll have to sell fries and shakes.
[ link to this | view in chronology ]
- Blue Sweater (profile), 15 Jan 2016 @ 8:59am
  
  Napster Bad!!!
  The Napster Bad cartoon is a classic as well.
  
  https://www.youtube.com/watch?v=VIuR5TNyL8Y
  [ link to this | view in chronology ]
Anonymous Coward, 14 Jan 2016 @ 1:14pm

Wait, what? Metallica threatening to sue fans? What year is this?
[ link to this | view in chronology ]
Anonymous Coward, 14 Jan 2016 @ 3:24pm

It wasn't the Napster lawsuit that tainted my opinion of what was my favorite band, it was seeing Lars testify before congress whining about profit margins.
[ link to this | view in chronology ]
John85851 (profile), 14 Jan 2016 @ 3:32pm

Which is worse...
Which is worse:
Metallica suing cover bands?
Or Metallica using a "loose cannon" lawyer that sues cover bands without their permission?
[ link to this | view in chronology ]
Mark Wing, 14 Jan 2016 @ 3:39pm

I had friends who knew the band in the 80s when they were just another local band. They used to give away cassette tapes of their music and encouraged people to share it. It was almost like some grass roots political movement.

...then they got big and turned into pricks who totally forgot what made them big in the first place: fans sharing their music with each other.

So this is unsurprising, and makes me think of that South Park episode where Lars Ulrich has to wait a month to buy his gold plated shark tank because of file sharing.
[ link to this | view in chronology ]
- Anonymous Coward, 14 Jan 2016 @ 3:49pm
  
  Re:
  It's so disappointing that so many bands go this same exact route. Starting out giving away and/or selling their music very cheap and really interacting with the fans to build a good fan base and then once they get it and actually make it to the big time and start getting all that money rolling in they flip flip and sue and whine and complain that someone out there dares to listen to a song of theirs without paying them.
  [ link to this | view in chronology ]
Dexter, 15 Jan 2016 @ 3:00am

Lars...we see what you did there....
Metallica's manager authorized the letter. Managers authorize letters, and letters get sent, all the time. This cover band just got loud about it, and Metallica, instead of simply apologizing and saying it was a miscommunication among reps -- you know, like, the truth? -- they slammed their attorney face-first into the concrete. I don't like lawyers any more than the next guy, but for shame, Metallica, you definitely took the low road on this one.
(And by "Metallica" I mean Lars -- who, incidentally, should grow some balls.)
[ link to this | view in chronology ]
- Anonymous Coward, 15 Jan 2016 @ 1:40pm
  
  Re: Lars...we see what you did there....
  Any band who sets up a special section for bootleggers at their concerts has far more balls then you're willing to admit.
  [ link to this | view in chronology ]
Monday (profile), 15 Jan 2016 @ 12:16pm

Nobody follows their lead.
I don't like Metallica. I never have. They act like a gang of teens, who've never read a really solid book or watched a documentary that'll give you nightmares for a couple of years afterwards. They're not out there and the lyrics suck! They obviously didn't catch the viddy where New York-based U2 tribute band Unforgettable Fire, at The Cutting Room, and where Edge, and Adam Clayton not only showed up in support, but got up on stage and played.

That's how you handle the fans.
[ link to this | view in chronology ]
Anonymous Coward, 15 Jan 2016 @ 1:32pm

"world-renowed"
[ link to this | view in chronology ]