The lead singer and guitarist of the legendary classic rock band the Guess Who returned to the stage together for the first time in decades Saturday, launching their Takin’ It Back reunion tour with a show in Ontario. Meanwhile, the other half of the fractured Canadian band is back as well – this time with a new lawsuit over the group’s bitter tour war.
In their new complaint filed Wednesday in federal court against performing rights management firm BMI, Guess Who founding drummer Garry Peterson and founding bassist James Kale claim they suffered millions of dollars in losses when lead singer and songwriter Burton Cummings – who owns the publishing rights to the Guess Who’s biggest hits, including “American Woman,” “These Eyes,” and “No Time” – went nuclear two years ago and terminated his entire performing rights agreement with BMI.
Cummings took the extraordinary step of yanking the Guess Who’s songs from the BMI licensing catalog covering concert venues because he wanted to stop Peterson and Kale from staging what he called “fake bullshit shows” using a different singer and guitarist. At the time, Cummings already was suing to wrest control of the Guess Who’s trademark from Kale, who obtained rights to the name in 1986 after the band never sought to protect it during its heyday in the late 1960s and early 1970s.
In the new lawsuit, Peterson and Kale, along with booking company BiCoastal Productions, say they spent months planning their U.S. tour and were in the midst of a soundcheck on April 6, 2024, when they were informed by BMI’s chief legal officer that Cummings had terminated his affiliation agreement with BMI, “effective immediately.” Peterson and Kale say they immediately cancelled their show that night and all remaining tour dates based on BMI’s representations.
Peterson and Kale now contend that BMI misinterpreted the termination’s effective date. They argue the agreement almost certainly remained in effect during a notice period that had not yet expired, meaning their concerts did not need to be canceled. “Contrary to BMI’s misinformation, a copyright holder cannot simply provide notice of termination of rights effective immediately in such a manner that would force the cancellation of all concerts that had already been planned, organized, and promoted,” the lawsuit states.
Alternatively, the lawsuit argues, if the termination truly took effect immediately, then BMI’s licensing system is fundamentally flawed, allowing rights holders to revoke permissions at will. The plaintiffs say they invested significant time and money because they relied on BMI’s blanket licenses to venues, which permit the live performance of any song in the organization’s catalog. Without that reliability, the lawsuit suggests, performers may be better served negotiating directly with publishers, as film and television producers do when securing music rights.
The lawsuit, filed in federal court in Manhattan, accuses BMI of breach of fiduciary duty, negligent misrepresentation, intentional interference with contractual relations, and fraud. It seeks compensatory damages estimated at several million dollars, to be determined at trial, as well as punitive damages based on what it describes as BMI’s “willful, oppressive, fraudulent, and malicious” conduct. (BMI did not immediately respond to a request for comment on Tuesday.)
“It’s not just Garry Peterson and Jim Kale who suffered,” said Michael Machat, an attorney for the plaintiffs, in an interview with Rolling Stone. “BiCoastal wasted a lot of time booking a tour that abruptly got canceled. It all went for nothing. In some cases, the venues had no time to find substitute acts and went dark. Some promoters lost a lot of money promoting the shows. …What happened doesn’t make sense. With most contracts, particularly commercial contracts, you have to give notice.”
Five months after Peterson and Kale canceled their tour, they reached a settlement with Cummings and guitarist Randy Bachman over the rights to the Guess Who name. Speaking with Rolling Stone at the time, Cummings confirmed he and Bachman acquired the trademark after extended mediation in Los Angeles.
“It’s been a very stressful period, but I’m relieved that it’s behind us and confident that I can come back to the States with my band and play all my songs,” Cummings said. “There’s been a fake band out there for a long time using the real records to promote their shows, and it handcuffed me in many ways. We’re trying to preserve the history and the legacy of the Guess Who for our fans who have followed the real band and the real songs.”
Cummings and Bachman played the first show of their new tour at the OLG Stage of the Fallsview Casino in Niagara Falls on Saturday. “Had a great time at our first show of the Guess Who’s Takin’ It Back Tour,” Cummings told fans in a social media post. “Looking forward to seeing all the new and familiar faces on the road.”
