When the music stops… Friends band performance stopped, international acts weigh in on ‘civil war’

Bruce Ndlovu , Sunday Life Reporter

ON Thursday, patrons at a Bulawayo hotel were left despondent when a local group, Friends Band, was stopped from going ahead with its weekly performance due to the recently enacted rule by the Zimbabwe Music Rights Association (Zimura) that bands and artistes must now pay US$150 per event to perform cover songs.

When news about the incident filtered through, it came as a shock to the music fraternity, as what had been a hypothetical discussion suddenly turned into a development with real-life consequences.

According to a member of the Friends Band who spoke to Sunday Life anonymously, the group was stopped from going on stage by the hotel staff, as they were not sure that if they allowed them to perform, they would not be penalised.

“The new rule has brought a lot of uncertainty and that is why we did not perform because the hotel was worried about what would happen if they allowed us to go on stage. They did not want to be billed an extra US$150 after we had left so they did not want to take that risk.

Vusa Mkhaya

Unfortunately, a lot of patrons were left disgruntled because they are now used to seeing a performance there by us every Thursday.”
With the ripple effects of the decision by Zimura still being felt across the local industry, debates have been raging between artistes, young and old, as they take stock of an unprecedented turn of events.

The decision has led to a simmering civil war among the country’s musicians, with some supporting the stance taken by Zimura while others vehemently oppose it. Accusations and counter-accusations have been thrown thick and fast with battle lines drawn between some composers and cover artistes, leading some to call for the intervention of neutral voices to quell the infighting.

With local artistes at each other’s throats, others have turned to those with experience in showbiz outside the country’s borders to make heads or tails of a decision that some say threatens the livelihoods of some of the country’s struggling artistes.

According to legendary Ilanga keyboardist Keith Farquharson, the new rules are an anomaly, even when international standards are taken into consideration.

“I don’t know of ANYWHERE in the world where a musician/band has to pay a fee to play cover songs in public. The way it usually works is this — the venue itself (club/bar/ restaurant etc.) pays a blanket licence fee to the local Performing Rights Organisation (PRO) which gives them permission to have music played or performed in their venue. Those fees filter their way back to the musicians (the collected licence fees get split among the musicians who are members of the PRO). Forcing performing artistes to pay a US$150 fee is a complete scam to start with — and if that has to be paid at every gig, it’s an even bigger scam,” Farquharson said.

His views were echoed by Austrian-based music maestro Vusa Mkhaya, who said the new rules put in place by Zimura were unheard of, as artistes were not supposed to remit money directly to an organisation before performances.

“When we perform all over the world we submit our set list to every venue/event promoter/festival. On that set-list, the Composer/Songwriter/Arranger of every song is mentioned. The venues and festivals pay a certain fee to the copyright-collecting societies of their respective countries for hosting live performances.

The collecting societies then distribute to the Composers/Songwriters/Arrangers mentioned on the set list.

“They must be registered with a collecting society in their respective country for them to be identified on the international database and be paid accordingly.

We have performed in more than 50 countries and 200-plus cities around the world. No one has ever made us pay a fee to perform at a venue because we have one or two covers on our set. We get paid royalties for performing our songs live onstage.

What Zimura is trying to do, asking artistes to pay a US$150 flat fee if they have cover songs on their set list, is a scam,” Mkhaya said.

The well-travelled Mkhaya also called into question how Zimura would be able to collect and distribute the funds that it got from artistes that it billed.

“How much are bands that perform in pubs and weddings paid in Zimbabwe right now? Where will they get the US$150 to pay Zimura after every gig? Will Zimura distribute the money to all the collecting societies representing the Composers/Songwriters/Arrangers of the cover songs? Venues and festivals must pay Zimura.

Artistes must be paid by the venues (performance fee). Composers/Songwriters/Arrangers must be paid by ZIMURA and other collecting societies,” Mkhaya said.

Liam Sunner, a law lecturer from the Queen’s University in Belfast, Ireland, said while there were usually remedies for artistes against cover bands that performed their music live extensively, it felt like an extraordinary step to attempt to make money from those playing at their local nightspots.

“From both a legal and musical aspect, there is the question of the name and performance of the band/ cover band. This is assessed across several fields, including trademark law, passing off and copyright. While a band may insist they are ‘about the music’, a band will also exist as a legal and commercial entity.

“As such, the band will have a number of legal mechanisms and remedies available to allow them to protect their artistic and intellectual property from a commercial perspective. While such mechanisms will primarily aim to ensure their songs are pirated, or used in advertised/ endorsements without their permission, they could also apply to a cover band playing in a local pub. However, it would be rare and somewhat damning to the band’s public image, for this to be enforced with similar zeal or eagerness,” he said.

In the UK, a few rare instances have seen artistes take action against groups that do covers.
Pearl Jamm, a UK-based tribute act specialising in cover songs of the alternative rock band Pearl Jam, found themselves in trouble after they received a cease and desist letter from Pearl Jam. According to the cease-and-desist letter, the use of “PEARL JAMM” on merchandise and in domain names was likely to cause confusion among customers and cause them to inter-connect Pearl Jamm with Pearl Jam.

This altercation resulted in Pearl Jamm changing their name to Legal Jam (albeit the cover band’s social media page makes it clear they were formerly a “Pearl Jamm Tribute”.)

More recently, pop sensation, Tina Turner, sued a German tribute act, Dorothea “Coco” Fletcher, due to Fletcher’s alleged uncanny resemblance to Turner. According to Turner’s legal team, Ms Fletcher, who has performed as Turner since her 30s, resembles too much like Turner in the promotional posters, to the extent that fans could easily mistake the real-life Turner to be connected to the show.