‘Nasty turn’ in Guess Who fight sees Burton Cummings cancel agreements that let band perform his songs

Burton Cummings’s latest blow in his legal battle against the current lineup of the Guess Who is tarnishing the legacy of the famous Winnipeg rock band, a local music historian says — and could set the stage for similar rifts between bands and former members.

The band’s ex-frontman has terminated agreements with performing-rights organizations for every Guess Who song he wrote and published, which means fans of hits like American Woman or These Eyes won’t be able to hear them played live in concert, according to a story published this week by Rolling Stone magazine.

Winnipeg music historian John Einarson said it’s an unprecedented move that shows the fight between Cummings and the band has “taken such a nasty turn.”

“What’s always kind of burned Burton Cummings’s butt is that Jim Kale and Garry Peterson, who were original members of the band, have been going out under the Guess Who name,” Einarson, who has written extensively about the band, told Faith Fundal on CBC’s Up to Speed on Friday.

“But they’re singing the songs that Burton sang, and he doesn’t like that at all.”

Cummings has now taken “a very benign music arm of the business that collects [royalties] for songwriters” when their music is played on radio or in concert, “and he’s weaponized it,” said Einarson. 

CBC News has asked Burton Cummings for comment.

Cummings has been involved in a decades-long fight with bassist Kale and drummer Peterson, who were among the founding members of the Winnipeg band along with Cummings and guitarist Randy Bachman.

Last year, Cummings and Bachman filed a lawsuit accusing Kale and Peterson of deceiving fans with a band touring under the Guess Who name.

Kale has not performed with the latest incarnation of the band — which Bachman and Cummings’s lawsuit referred to as “the cover band” — since 2016, and Peterson makes infrequent appearances with the group, according to suit.

But in their own court filing, Kale and Peterson argued they’ve always been upfront about the band’s numerous member changes and have never advertised Cummings and Bachman as being part of the current lineup. 

However, Cummings latest move means the band can’t perform some of the Guess Who’s biggest hits.

Cummings confirmed the move in the Thursday Rolling Stone story, saying the band will be sued every time they perform a song he wrote. He accused the band of taking his life story and “pretending it’s theirs.”

“I’m willing to do anything to stop the fake band,” Cummings was quoted as saying in the Rolling Stone article.

‘Devastating’ to band: manager

Since nearly every venue in America has agreements with performing rights organizations, the termination means most U.S. venues can’t host any performances of Cummings’s songs.

It also means, however, Cummings will lose out on royalties he normally earns from those performances.

“It’s really hurting the legacy of the Guess Who,” Einarson said. “It’s a terrible thing to do.”

The manager of the current Guess Who lineup, Randy Erwin, said they’re willing to sit down with Cummings to negotiate, but whether or not that happens is “up to him.”

“It’s devastating,” he told CBC News over the phone on Saturday.

“[My] biggest concern is for Jim and Garry, the owners of the Guess Who trademark, and the band members and everybody else that’s associated with the … performance of this band to be able to make a living and continue to work.”

Several shows in Florida and Alabama have been cancelled since the band found out about the terminated agreements last Saturday, on a day they were expected to perform, Erwin said.

Since it was a weekend, they weren’t about to contact Broadcast Music, Inc. (BMI), the performance-rights organization the band had an agreement with, to see if the songs had to be pulled or not.

“It’s been, you know, damage control. We’ve been in contact with the venues for shows that are supposed to be occurring and consulting with our legal team,” Erwin said, adding that about 70 or so shows are already booked for 2024.

Like Einarson, he said Cummings’s approach is novel.

“In my 50-plus years in this industry, I’ve never seen somebody weaponize the actual copyright,” he said.

‘Doesn’t feel right’

Einarson said other artists might now run into similar problems.

“It really opens up a whole floodgate of, you know, possibly a lot of negativity happening and a lot of artists who discover that they can’t perform anymore because someone else is preventing them from doing it,” he said.

Erwin said it’s not only the band members who will take a financial hit. Merchandise companies, venues that have shows booked, promoters and venue staff will also lose out.

“A lot of people are being harmed by this,” he said — including Cummings. “He makes money every time we’re out there working.

“It just doesn’t feel right.”

Einarson said he thinks there’s an element of jealousy in Cummings’s move.

“It’s not being motivated by money,” he said. “It’s really about this very personal thing.”

He also doesn’t buy Cummings’s claim that fans are being duped into thinking they’ll see him and Bachman in concert.

In the 1960s and 1970s, “no one ever knew who was in the band. It wasn’t Burton Cummings and the Guess Who,” said Einarson.

“That’s one of the things that hurt Burton’s solo career when he went out on his own after the Guess Who, was a lot of people said, ‘Well, who’s he?'”